Dissenting. — This suit was begun by Mary C. Harvey and S. S. Wheeler; but inasmuch as Wheeler was only a tenant, the word plaintiff, when used, will be employed to indicate Mary C. Harvey.
The snit terminated in the Circuit Court in a decree which was adverse to Mary C. Harvey. An appeal to this court resulted in an affirmation of the decree. A petition for a rehearing was granted, and the parties again orally argued to this court their *440contentions. At the rehearing no new thought was advanced by either party, and no argument was made which had not been previously urged upon us. The rehearing therefore requires a re-examination of the evidence and calls for a reconsideration of the same arguments which were considered at the first hearing and repeated at the second hearing.
The decision of this lawsuit must be determined by whatever construction is placed upon the deed made by Floyd J. Campbell and his wife to Mary C. Harvey on October 8, 1917. That deed so far as it is material here reads as follows:
“The West Half (W. y2) of the South East Quarter (SE. !4) and East Half (E. y2) of the South West Quarter (SW. %) of Section 25, in Township 8 South, Range 43 E. W. M., in Baker County, Oregon, containing 160 acres of land; and also 80 inches of water measured under six inch pressure of that certain water right taken out of what is known as the Sparta Ditch in Baker County, Oregon, as such water right is defined and measured by the State Water Board of Control of the State of Oregon, in its Findings and Adjudication in the matter of the Adjudication of the rights of various claimants to the water of Powder River and its tributaries; Also a pro rata interest in 250 inches of water allowed to the Sparta Irrigation (Company) under its appropriation through said ditch in the discretion of the water master to cover seepage and loss of water in transit from the point of origin, to the point of delivery.”
In this deed Campbell covenants that he is the owner in fee simple of the premises, and that they are free from all encumbrances except a mortgage executed by the Sparta Irrigation Company to the Grand Rapids Trust Company on October 3, 1914 and the supplementary mortgage “between the same *441parties, of date October 3, 1916,” which mortgages Mary O. Campbell “assumes and agrees to pay her pro rata share thereof hereby fixed and agreed to be the sum of $2,400, with interest.”
The controversy centers around the language in the deed referring to the water. The plaintiff insists that the wording found in the instrument is so plain and unambiguous as to exclude the consideration of any matters outside of the deed and that the clear and obvious meaning of the language is that the grantors intended to convey and the grantee intended to receive an absolute, definite and fixed quantity of water to be delivered during the irrigating season. As stated in the original opinion if the words “also eighty inches of water measured under six inch pressure” were the only words found in the deed, then the contention made by the plaintiff might have some foundation upon which to rest. But the words last quoted are not the only words found in the deed. Any reading, whether casual or the most careful, of the instrument, makes it clear, it seems to the writer, that no one can know with certainty exactly what is attempted to be conveyed without seeking- information outside of the deed. If the parties had intended to convey the definite and absolute quantity of eighty inches of water so as to impose upon Campbell an obligation to deliver at all events eighty inches of water just as he would be obliged to deliver eighty bushels of wheat if he had agreed to sell eighty bushels of wheat, is it not manifest that the parties would have omitted the words
“of that certain water right taken out of what is known as the Sparta Ditch in Baker County, Oregon, as such water right is defined and measured by the State "Water Board of Control of the State of Oregon, *442in its Findings and Adjudication in the matter of the Adjudication of the rights of various claimants to the waters of Powder River and its tributaries.”
Indubitably the reference to the Powder River adjudication was made for some purpose. What then was that purpose? In order that we may ascertain, if possible, the purpose sought to be accomplished, let us inquire into the history of the Sparta ditch; let us ascertain what rights were acquired by the owners of the Sparta ditch, and let us seek to learn of the manner in which they exercised those rights; and let us acquaint ourselves with the facts and circumstances surrounding the conveyance from Campbell to Mary C. Harvey. In 1870 work on the ditch now known as the Sparta ditch was begun with the view of tapping waters of the west fork of Eagle Creek, a tributary of Powder River, and conveying them to a place known as Sparta, there to be used for mining purposes principally. The ditch was completed without delay, and the waters of the west fork of Eagle Creek were diverted through the ditch to Sparta, where such waters were used for domestic, mechanical, mining and irrigation purposes, but principally for mining purposes. In 1863 water was appropriated and thereafter used through a ditch known as the Hoagum Ditch, and in 1871 “the Hoagum Ditch was extended to empty its waters into the Sparta Ditch, and was purchased by the owners of said Sparta Ditch at said-time.” The Hoagum ditch has been used as a feeder for the Sparta ditch, and “especially for the purpose of running water into said Sparta ditch which would be picked up by said Hoagum ditch from the melting snows during the spring thaws, and from the canyons that flowed water during that thaw, and this use was especially made at *443a time when, the head of the Sparta ditch and of the Hoagum ditch were not thawed out so as to permit the diversion of water from the creek.” It is about twenty-five miles from the head of the Sparta ditch to Sparta. A tract of about 1,500 acres of arid land is located about six miles from Sparta. The land purchased by the plaintiff is a part of this 1,500-acre tract. The Sparta ditch was at some time extended so as to make water conveyed through it available for use on this 1,500 acres of arid land. Although the record does not inform us as to the time when the Sparta ditch was extended to the 1,500-acre tract of arid land, it does appear that the ditch had been extended and was in use before Campbell purchased in 1917.
In May, 1909, persons claiming the right to use the waters of Powder River and its tributaries filed a petition with the Board of Control (now State Water Board) asking for a determination of the relative rights of all persons to the use of the waters of those streams, and the board subsequently determined to adjudicate the rights of all claimants. •
In May, 1913, the Sparta Irrigation Company, a corporation, was organized. According to the resolution duly adopted and recorded in the minute-book of the corporation
“the purpose of organizing this company is to acquire the water rights, ditches and canals of the Sparta and Hoagum ditches or canals to irrigate certain lands of the incorporators of this company for agricultural purposes.”
F. W. Tallmadge, R. L. Boyd, P. T. Wyatt, all owners of lands in the 1,500-acre tract, and R. H. Goodwin subscribed to the articles of incorporation. The amount of capital stock was fixed by the original articles at $30,000. The capital stock was divided *444into 500 shares of the par value of $60 each. F. W. Tallmadge, who then owned the 750 acres afterwards purchased by Campbell, subscribed for 251 shares; P. T. Wyatt, 105 shares; E. L. Boyd, 93 shares; and A. S. Boyd, 51 shares. The stock subscription of each was in proportion to the acreage owned by him. The business in which the corporation proposed to engage was, among other things, as declared by the articles of incorporation,
“to operate, buy, lease, locate sell, acquire, procure, hold, and deal in water rights, ditches, flumes, laterals and feeders, canals and in each and every manner concerning water rights * * and more especially in taking water holdings and acquiring them, certain ditches, canals, flumes and water rights commonly known as the Sparta and Hoagum ditches and water right appertaining thereto.”
The minute-book recites that the Sparta and Hoagum ditches can be purchased for $30,000, and the issuance of bonds to the amount of $30,000 was authorized. The same resolution which declares that the purpose of organizing the corporation is to acquire the Sparta and Hoagum ditches to irrigate certain lands of the incorporators, also recites that the incorporators are not able to pay the purchase price in cash and “they have agreed to pay the same by negotiable bonds secured by a mortgage or trust deed”; and it is further recited that in order to “satisfy the bond holders” the owners of the land were to convey their lands to the company so that such lands could be included in the trust deed that was to be given as security for the $30,000 bond issue and then the lands were to be reconveyed to the respective owners subject to such trust deed and mortgage “and upon the express condition that such *445grantee in each conveyance shall pay his just and proper proportion of the purchase price of said Sparta and Hoagum ditches, lands and water rights. ’ ’
In 1912 George Grant, trustee, obtained a judgment against the Oregon Mining and Irrigation Company, a corporation. Subsequently in obedience to an execution issued on that judgment the sheriff sold for $20,443.14 certain mining claims and
“also that certain ditch and water right, known as the Sparta canal, or Sparta Ditch, and the Hoagum Ditch, being a feeder into the Sparta canal, or ditch, and all the lateral ditches, feeders and water rights to said Sparta canal or ditch and to the Hoagum Ditch and all ditches, water rights, easements and franchises appendant and appurtenant or thereunto appertaining to said ditches and water rights aforesaid.”
The .sale was confirmed; and based upon the sale and confirmation the sheriff subsequently executed and delivered to the Sparta Irrigation Company a deed dated July 11, 1914, conveying to that company all the placer mining claims, the Sparta and Hoagum ditches and water right. On June 25, 1914, F. W. Tallmadge, P. T. Wyatt, R. L. Boyd and A. S. Boyd, who owned all the stock of the Sparta Irrigation Company, attended a stockholders’ meeting and authorized the reduction of the capital stock from $30,000 to $22,500 divided into 500 shares of the par value of $45 each. In October, 1914, the Sparta Irrigation Company gave to the Grand Rapids Trust Company a mortgage to secure bonds amounting to $22,500 issued by the irrigation company. This mortgage covered the arid lands which the stockholders had conveyed to the irrigation company and it also included other property rights.
*446On September 23, 1916, a stockholders ’ meeting, attended by all of the stockholders of the Sparta Irrigation Company, was held. One of the objects of the meeting was “to adopt proper certificates of water rights * * to be issued to those entitled to use water out of the ditches of this company, ’ ’ and at that meeting a form of certificate of water right to be issued was by the consent of all the stockholders adopted, and the form was written out in full as a part of the recorded minutes of that meeting.
Employing the form so adopted, the Sparta Irrigation Company issued a certificate of water right to P. W. and L. W. Tallmadge, who then owned the 760 acres subsequently purchased by Campbell, and of which the 160 acres sold by Campbell to plaintiff was a part- The Tallmadge certificate of water right was recorded in the deed records and appears in full •in the two abstracts of title received in evidence; and if plaintiff read either abstract she read such certificate. The abstract of July 17, 1917, s'ets out the certificate as follows:
“CERTIFICATE OP WATER RIGHT.
The Sparta Irrigation Company, a corporation of Oregon, —to— P. W. Tallmadge and L. W. Tallmadge. “Recites :—
85 of deeds page 347. Dated Sept. 23rd 1916. Recorded Oct. 20th 1916. Consideration, ownership of shares.
“This is to certify that P. W. Tallmadge and L. W. Tallmadge, jointly, by virtue of their ownership of two hundred and fifty one (251) shares of the 500 shares of the capital stock of the Sparta Irrigation Co., are also the owners of 251/500 of the waters of the Sparta Ditch, owned by said Company and are entitled to the exclusive use and benefit of such 251/500 of such waters of said ditch for the purpose *447of irrigating 753 acres of land in the NW. % of NW. % and the S. % of NW. % and the SW. % of the NE. % and the W. % of the SE. % and the SW. % of Sec. 25; and the SE. % and the E. % of the SW. % of Sec. 26; and N. % of the NW. % and the NW. % of the NE. *4 of Sec. 36 all in Twp. 8, S. E. 43 E. W. M. in Baker County, Oregon, as adjudicated to such lands by decree of the Circuit Court, for Baker County, Oregon, and the State Water Board, subject however to the following provisions and conditions:—
“1. Said lands may be sold or assigned and conveyed, and in such case all the rights and conditions of this certificate shall pass by any conveyance thereof as an appurtenant to said lands, unless the owner of this certificate shall expressly reserve this certificate from such conveyance, but in no case shall the right to use any water on or in connection with any other lands, other than those above described, be permitted or allowed, except by the express consent of this company.
“2. In case the ownership of said lands is changed by conveyances thereof in amounts less than the whole, then the rights under this certificate shall attach to each owner of such lands in the proportion as his interest therein may bear to the whole of said lands, and this certificate may be cancelled and new certificate issued in like tenor, covering the right to each owner in the proportion to which he be entitled.
“3. All the expenses in the upkeep, extending or enlarging said ditch, or in the supervision of the distribution of the waters thereof, together with all necessary expenses in the running of said Company, shall attach to said land, and the right to use water out of said Sparta Ditch as evidenced by this certificate, and be a lien thereon until paid in the same proportion as the number of acres of land above described bears to the iohole number of acres irrigated out of said ditch, and the said lien may be foreclosed in the same manner as liens secured by mortgage on real property are now foreclosed, and in the case of such foreclosure a lien for costs and reasonable attorneys fees shall also be allowed thereon.
*448“This remedy is in addition to any other remedy this company may provide in raising funds for the purpose aforesaid, or for any other legitimate purposes.
“4. The Grand Eapids Trust Co. of Grand Eapids Michigan, now has a Trust Deed or mortgage upon said ditch and other lands in the sum of $22,500.00 due Jany 21st, 1925, with interest at 6% per annum payable Jany 1st of each year, and the above described lands for which this water rights is issued, shall bear their share in discharging and satisfying said mortgage, according to its terms, which proportion for said lands above described amounts to the sum of $11,295.00 with interest, and in case of foreclosure, costs and attorneys fees.
“5. This certificate is granted subject to the laws of the State of Oregon and the rules and regulations now in force or which may hereafter be adopted for the government of this company.
“6. This certificate shall be of no force or effect unless signed by the President and Secretary of the said Sparta Irrigation Company, with the seal of the Company affixed, and also accepted by the persons to whom this certificate is issued by the signatures of such persons.
“In Witness Whereof, etc.
“Signed,
“Sparta Irrigation Company,
“By F. W. Tallmadge, President.
“(Corporate Seal.)
“By E. L. Boyd, Secretary.
“We to whom the above certificate was issued, do hereby accept the same, subject to the terms and conditions thereof.
“Signed, F. W. Tallmadge.
“L. W. Tallmadge,”
At the same meeting the stockholders authorized the execution of a supplemental mortgage. It appears that some of the lands in the arid tract of 1,500 acres were not included in the description written in *449the mortgage of October, 1914. It was understood that these omitted lands would be conveyed to the Sparta Irrigation Company and then after executing the supplemental mortgage covering such omitted lands, the Sparta Irrigation Company would reconvey the lands, subject to the encumbrances, to the respective owners. This explains the reason for the supplemental mortgage; and we also read in the minute-book l‘the object of'same (supplemental mortgage) being to have all the lands to which the waters of Sparta ditch have been adjudicated liable and bear their proportion of satisfying the $22,500 indebtedness to the said Grand Eapids Trust Company.”
At some time, not disclosed by the record, the Sparta Irrigation Company began a suit against Earl F. Cranston and A. N. Ingle, and this suit terminated in a decree which was subsequently, on November 5, 1915, amended; and, in its amended form, it was in substance adjudged that the Sparta Irrigation Company owned the Sparta ditch and is entitled to use it for the purpose of conducting water from the west fork of Eagle Creek to and upon the lands of its stockholders, and that the company
“is also the owner of the right to divert, appropriate and use upon the said lands of the said stockholders, 750 inches of the waters of said stream (west fork of Eagle Creek) the same to be measured and delivered under six inch pressure miner’s measurement at the place of the use of the same, and that F. W. Tallmadge and L. W. Tallmadge his wife of said stockholders are to have the use and enjoyment of 376% inches thereof the same to be appurtenant to the following described lands,” describing the lands owned by the Tallmadges.
It is also adjudged “that Maud E. Boyd of said stockholders shall have, use and enjoy 139% inches *450of said water as appurtenant to her lands,” describing the lands; and like language is applied to Arthur S. Boyd, P. T. Wyatt and W. A. Wyatt the then other stockholders who respectively shall have, “use and enjoy” 76% inches, 78 inches and 79% inches “of said appropriation.” As a result of the petition which had been filed in 1909 the water board after hearing evidence on November 17, 1915, made and on April 1, 1916, filed with the county clerk of Baker County its findings of fact and order of determination of the relative rights to the waters of Powder River and its tributaries including the west fork of Eagle Creek; and on March 8, 1918, the Circuit Court entered its decree in the Powder River ádjudieation.
This adjudication involved the consideration of many streams and of a very large acreage owned by many different persons. Of the findings of fact made by the water board, the following are especially applicable to the Sparta ditch. Finding No. 30, so far as it is here material, recites that in 1870 a notice was posted on Eagle Creek appropriating 3,000 inches of water for what is known as the Sparta ditch; that the ditch was completed and water run through it to the town of Sparta on October 14, 1871; and that the appropriation was for domestic, mechanical, mining and irrigation purposes. Finding No. 30 proceeds thus:
“That upon the completion of said ditch, there was at one time 800 miner’s inches of water delivered to the water users out of said ditch, and the diversion of water into said ditch, at the time same was used to full capacity, was between 1,000 and 1,500 inches * * That from the building of said ditch, until 1914, the water of said Sparta Ditch was sold each year by the owners thereof, for the purpose of domestic, mining, power and irrigation use. That beginning with *451the year 1915, the owners of said ditch proposed to apply the water from said ditch partly upon the lands described in the tabulation hereinafter, amounting to 1500 acres; that 750 miner’s inches of water delivered on the land is sufficient to irrigate the lands proposed to be irrigated. That the change of use of water from sale for. domestic, mining, power and irrigation use to an irrigation use, does not infringe upon the rights of any other water users from Eagle Creek, and in making the said change said George Grant, trustee, and the water users from said Sparta Ditch have the right to use a reasonable time for making said change without losing their date of priority. That five years is such a reasonable time and the lands to be irrigated in making such change shall be tabulated herein under the head of inchoate rights.”
Finding No. 30 made by the water board was incorporated, without any material changes, in the decree rendered by the Circuit Court.
In Finding No. 31 made by the water board it is recited that a certified copy of the decree rendered in the suit prosecuted by the Sparta Irrigation Company against Earl F. Cranston and A. N. Ingle was filed “in these proceedings.”
Finding No. 31 proceeds as follows:
“The said decree found that 750 miner’s inches of water, under a six inch pressure, delivered at the place of use, was sufficient water to irrigate the lands of the stockholders of said Sparta Ditch Company. That said Sparta Ditch is 30 miles in length; that the seepage in said ditch would be great. That a reasonable seepage to be allowed said Sparta Ditch would be about 250 miner’s inches. That the water master of the district shall allow for seepage in the distribution of water, such an amount as such seepage aggregates, not to exceed 250 miner’s inches. That the stockholders and water users of said Sparta Ditch Company are: F. W. Tallmadge, L. W. Tallmadge, Maud E. Boyd, Arthur S. Boyd, P. T. "Wyatt and W. A. Wyatt and the land to be irrigated is *452described in the tabulation hereinafter set forth under inchoate rights.”
Finding No. 31 made by the Circuit Court sets out a full copy of the decree rendered in the case of Sparta Irrigation Company v. Earl F. Cranston and A. N. Ingle and it is there declared in the finding that “the rights of said parties are hereby established'in accordance with the decree. That the Sparta Irrigation Company is the successor in interest of George Grant, trustee, and owns the Sparta Ditch.”
Finding No. 31 made by the Circuit Court also declares:
“That said decree found that 750 miner’s inches of water, under a six inch pressure, delivered at the place of use, was sufficient water to irrigate the lands of the stockholders of said Sparta Ditch Company”; and the remainder of this finding is identical with that part of the water board finding No. 31 which follows after the words last quoted.
Finding No. 128 made by the "Water Board, and confirmed by the Circuit Court, declares that “the following appropriators have” applied to the State Water Board to prescribe the time within which the full amount of water appropriated shall be applied to a beneficial use; and it is recited that “it appears to the said State Water Board that the appropriations of said appropriators” were initiated prior to February 24, 1909, and that actual construction had been commenced in good faith prior to that date. It is determined that—
“each of the appropriators tabulated therein shall complete their appropriation including the construction work and application of the water to a beneficial use, on or before the date set in such tabulation as being the limiting date for the complete application of such water to a beneficial use. * * Upon the expiration of said time for the complete application *453of the water to a beneficial use * * the State Water Board shall canse due proof to be taken of such application of the water to a beneficial use, and grant such water right certificate as said State Water Board may ascertain that such appropriator is entitled to receive by virtue of such proof.”
It is further stated that—
“the name and address of each appropriator of water from said Powder River and its tributaries, who has not completed such appropriation, and who has so applied to the State Water Board to prescribe the time within which the full amount of water shall be applied to a beneficial use, are hereinafter in this finding arranged in alphabetical form, together with the date of relative priority of each of such appropriations, the limiting date for the complete application of the full amount of water appropriated to a beneficial use, the use or uses for which such water was appropriated and is to be applied, the number of acres for which the appropriation was made, and the number of acres now irrigated * * .”
Then follows a table with the names of the appropriators arranged in alphabetical order. The table is arranged with headings. Under the heading “Description of Land or Place of Use” are described, so far as material here, thirty-nine separate subdivisions varying from thirty-five acres the smallest, to forty acres, the largest. These subdivisions compose the 1,500-acre arid tract; and among these subdivisions are the four forty-acre subdivisions composing 160 acres conveyed to the plaintiff. Underneath the tabulation of the thirty-nine separate subdivisions we read: “ Of the foregoing lands, the following have been irrigated”; and then follows a list of forty-acre subdivisions with the acreage irrigated. The total irrigated acreage amounts to 178% acres, of which seventy acres are within the lands purchased by the plaintiff. Omitting all that appears underneath the heading “Description of Land or Place of Use,” the *454headings and matter appearing underneath them as follows: are
*455The deed received by plaintiff notified her to examine the findings and adjudication of the Water Board. If she made such examination, as she was obliged to do, she found that the Sparta Irrigation Company was the owner of the Sparta ditch, and that the several stockholders “shall have, use and enjoy” a specified quantity of water “as appurtenant to” their specifically described lands. At that time F. W. Tallmadge and L. W. Talhnadge, his wife, were stockholders in the corporation and they owned the lands which Campbell subsequently purchased. The findings advise that the Sparta Irrigation Company owned the Sparta ditch and the right to divert and use upon the lands of its stockholders 750 inches of water and that the Tallmadges “of said stockholders” shall have the use and enjoyment of 376% inches of such water right. The findings also advise that on October 14, 1871, the ditch was completed and water run through it and that upon .the completion of the ditch there was at one time 800 inches delivered to the water users and that “at the time -same was used to full capacity,” the diversion from west Eagle Creek was between 1,000 and 1,500 inches. The findings further advise that from the building of the ditch until 1914 the water was used for domestic, mining, power and irrigation purposes; that beginning with 1915 the owners of the ditch proposed to apply the water upon the 1,500-acre tract; and then the Water Board declares that 750 miner’s inches delivered on the land is sufficient to irrigate the tract, and a period of five years is allowed for effecting a change of use and applying the water on the lands “tabulated herein under the heading of inchoate rights.” The findings do not declare that the then carrying capacity of the ditch was 750 inches or more. It is true the recital is *456that “there was at one time 800” inches of water delivered to the water users, but this is only another way of saying that the ditch was not then carrying that quantity of water; and the recital that “the diversion of said water into said ditch at the time same was used to full capacity, was between 1,000 and 1,500” inches is only another way of saying that at the one time when the ditch carried 800 inches it was carrying its then full capacity and that to get a greater quantity at the place of delivery it was necessary to divert between 1,000 and 1,500 inches from west Eagle Creek. The board limited the quantity of water thereafter to be used by the owners of the 1,500-acre tract by finding that 750 inches were sufficient for the irrigation of the whole tract, and then on the basis of one-half inch per acre the board found that the Tallmadges and the other stockholders were each entitled to “have, use and enjoy” a specified number of inches of water of the water right. Finding No. 30 declares that the Sparta Irrigation Company has the right to deliver 750 inches of water to its stockholders, but it does not declare directly or impliedly that 750 inches were then being delivered to the users.
If we pass to finding No. 123, we observe that this finding involved the idea that 750 inches were not then being conveyed through the ditch and used. Finding No. 128 opened with the recital that the “following appropriators have” applied to the board “to prescribe the time within which a full amount of water appropriated shall be applied to a beneficial use,” and it appearing to the board that the appropriation of each of such appropriators was initiated prior to February, 1909, and that actual construction work was commenced in good faith prior to that *457date, and then it is ordered that each of the appropriators tabulated shall complete his appropriation including the construction work and application of the water to a beneficial use on or before the date fixed for such application. Although the finding declares that the Sparta Irrigation Company has the right to deliver 750 inches of water to its stockholders it is made plain that that quantity was not being delivered and could not be delivered at that time.
The findings and adjudication of the water board gave the names of the stockholders and described the lands owned by them respectively. The right to deliver 750 inches is adjudged and of that -right each stockholder shall have the use of a specified quantity of water based upon the number of acres owned by each stockholder.
Mrs. Harvey knew when she received her deed that she was also to receive as a part of the transaction 53% shares of the capital stock of the Sparta Irrigation Company, and this fact makes it necessary to inquire into the surrounding circumstances. Indeed, it is impossible to appreciate the situation of the parties or adequately to understand the controversy unless all the circumstances are known.
The Tallmadges by a deed dated November 1, 1916, conveyed all the lands owned by them, being “760 acres more or less,” to Eobert N. Warnock,
“together with all the water and ditch rights thereunto appurtenant * * said water right being in the amount of 376% inches of water, measured under six inch pressure out of the Sparta Ditch.”
Warnock by a deed dated July 30, 1917, conveyed to Campbell the “760 acres more or less” and
“also that certain water right to the amount of 376% miner’s inches of water measured under six inch pres*458sure, taken ont of what is known as the Sparta Ditch in Baker County, Oregon, as such water right is measured and defined by the State Water Board of the State of Oreg’on on the 17th day of November, 1915, in its findings of fact for an adjudication of the rights of the various claimants to the waters of Powder River; and also a pro rata share of not to exceed 250 miner’s inches of water allowed in said decree in the discretion of the water master for and on account of seepage.”
This conveyance is subject to the $22,500 mortgage held by the Grand Rapids Trust Company and it is recited in the deed that the amount of such mortgage apportioned to the Warnock land is $11,295, and that upon the payment of that sum with interest the Warnock land will be released from the mortgage. The payment of the portion of the encumbrance so apportioned was assumed by Campbell.
By a deed dated October 8, 1917, Campbell and wife conveyed 160 acres of the land to Mary C. Harvey. The grantors covenant that they are the owners in fee simple of the premises and that the land is free from encumbrances except the mortgages held by the Grand Rapids Trust Company “of which said mortgages so recorded and now an encumbrance and lien against said property the grantee herein assumes and agrees to pay her pro rata share thereof hereby fixed and agreed to be the sum of $2,400 with interest thereon. ’ ’
The 760 acres which the Tallmadges owned were by them conveyed to Warnock together with 251 shares of the capital stock of the Sparta Irrigation Company; Warnock transferred all the land and all the stock to Campbell; and Campbell conveyed 160 acres of the land and assigned 53% shares of the stock to plaintiff. When Campbell purchased, less than 750 inches were being delivered by the ditch, and *459the quantity delivered was prorated among the water users. During the season of 1918 and 1919 less than eighty inches of water was delivered to the Harvey land except when the water was rotated between the Campbell and Harvey lands, and yet plaintiff did not assert an absolute right to eighty inches until the fall of 1919 and after Wheeler had learned that he could not lease the Campbell land for another year.
Campbell’s home was in Portland. He had been acquainted with S. S. Wheeler since 1909. Soon after Campbell purchased from Wheeler he wrote to Wheeler about a certain business matter, and as a result of that letter Wheeler called upon Campbell at the latter’s Portland home. On that occasion Campbell informed Wheeler that he had purchased “an irrigated tract of land.” Campbell also told Wheeler that he did not know anything about irrigation and that he needed somebody who did know about it. Wheeler had had much experience in irrigated lands, and the uncontradicted evidence is that he was an expert irrigationist. An understanding was reached whereby Campbell was to pay Wheeler and his wife $60 a month “for the balance of the fall” and Campbell was to furnish everything at the ranch.
Wheeler and his wife arrived at the Campbell ranch about noon on August 13, 1917. The next morning Wheeler took charge of the irrigation and thereafter retained charge of it so long as he was on the Campbell ranch. After Wheeler and his wife had been there “a couple of weeks” Mrs. Wheeler wrote to her two sisters, Mrs. Mary C. Harvey and Mrs. Plora Dunne, and invited them to visit with her and her husband. The two sisters accepted the invitation and arrived at the Campbell ranch about the middle of September. Soon after their arrival the plaintiff *460and Mrs. Dunne became interested in tbe idea of buying portions of tbe Campbell ranch. Finally, on October 8, 1917, the plaintiff, together with Campbell and Mr. and Mrs. Wheeler, drove to Baker and went to the office of James H. Nichols, a lawyer, and had him prepare the deed. Nichols was the attorney for the Sparta Irrigation Company and was familiar with the history of the ditch. The plaintiff paid $1,000 in cash and gave three notes for $3,000 each and one note for $2,000. All the notes have since been paid in full. In this connection it is appropriate to state also that Mrs. Dunne purchased 160 acres from Campbell; but, not being able to complete her payments, she requested Campbell to take the land back and return to her the moneys which she had paid, and he did so. It was understood that if the plaintiff purchased she would lease her land to Wheeler and that Campbell would likewise lease the remainder of his land to Wheeler; and accordingly when the plaintiff purchased she and Campbell leased their respective properties to Wheeler, and thus Wheeler had control over all the water available for use on those lands during the irrigating season of 1918. The Campbell lands were farmed by a son of Wheeler’s in 1919; and S. S. Wheeler, who continued as lessee of the Harvey land until the time of trial, managed the distribution of the water on the Harvey and Campbell lands during the irrigating season of 1919. In the fall of 1919 Campbell made it known that 'he would not lease his land to Wheeler any longer; and instead of renting to Wheeler he rented to William Long for the year 1920.
When Campbell purchased from Warnock the capacity of the Sparta ditch was less than 500 inches. The water-master of Baker County in 1920 measured *461the water going into the Sparta ditch at its head and found the amount to be 621 inches, and in his language
“we figured at that time after we walked to the head of the ditch it was about as full as the ditch would carry in safety. Some places an additional increase of water might have damaged it by cutting out the banks ’ ’;
and when the ditch was receiving at its head its full capacity not more than 380 inches at the most were running, in the ditch at the road crossing near Sparta, •a point about twenty-five miles from the place of diversion, and about five miles above the 1,500-acre tract. Although the ditch was cleaned out nearly every year, if not every year, its carrying capacity was less in 1917 and afterwards than at or near the time when it delivered 800 inches. January 1, 1921, was the time limit fixed for the completion of the appropriation for the 1,500-acre tract; and so in the late summer or fall of 1919 the stockholders of the Sparta Irrigation Company met at the Campbell ranch in an attempt to hold a special meeting for the purpose of authorizing the enlargement of the ditch within the prescribed time so as- to restore the ditch to its former carrying capacity and thus enable the delivery of 750 inches to the 1,500-acre tract. The plaintiff and Mrs. Dunne refused to sign waivers of notice and also declared that they would not help to pay for enlarging the ditch so as to restore it to its •former carrying capacity. Subsequently the stockholders of the corporation authorized the improvement of the ditch, and the work was then done; but the plaintiff refused to pay any assessment for such work, because she contended that her deed obliged Campbell to pay the whole of such assessment.
*462In substance the plaintiff says that soon after her arrival at the ranch Campbell “began to talk to me about buying land,” and that notwithstanding she told him that she did not wish to purchase any land, he kept on describing his farm and telling of its advantages and the good soil and abundance of water and the good water right. Campbell, the Wheelers, the plaintiff and Mrs. Dunne occupied the ranch house and consequently were together much of the time; and naturally these persons are the main sources of information as to what was said in the different conversations which occurred prior to the execution of the deed, at the ranch house, at the diverting dam a short distance above the house and at the road crossing near Sparta. The plaintiff, defendant, the Wheelers and Nichols are the sources of information as to what occurred when the deed was executed on October 8th.
It is conceded by all that during several conversations at the house calculations were made by the defendant or in his presence as to what the lands proposed to be sold to the plaintiff could raise. Wheeler appears to have agreed with the calculations, but he claims that he qualified his approval by saying that the calculated quantities could be raised if there was as much water as Campbell claimed there was. The testimony on behalf of plaintiff is that on numerous occasions Campbell told plaintiff that the ditch was one of the best ditches in the state, that it was the best water right in the state, that the court had decreed 750 inches of water to the 1,500-acre tract of land.
“and that would be a half inch per acre for all the irrigable land, that this water was to be delivered on the land, that there was plenty of water.”
*463Reviewing what took place in Nichols’ office on October 8th the plaintiff said:
“When the deed was brought in Mr. Nichols read it to us and I asked particularly about the half inch of water per acre. Then he showed me the deed, that it said 80 inches of water per acre for the land, and I said, what does that mean? And it was explained that this meant just the same as the half inch per acre, and that that meant every year for the irrigation season. I asked that particularly and Mr. Campbell and Mr. Nichols both concurred with that.”
The plaintiff says in substance that she understood when she bought that the ditch was.entitled to carry and that it was carrying 750 inches of water and that she would receive eighty inches of water delivered on her land without any cost to her except the expense of upkeep which Campbell estimated would be about $85 per year; and she also says that the first she heard of the necessity of enlarging the then carrying capacity of the ditch so as to enable it to carry 750 inches was in September, 1919, shortly prior to the attempted stockholder’s meeting previously mentioned; but Wheeler, who says he can look at a ditch and make a “pretty close” estimate of the amount of water in it, testified, when a witness for plaintiff, that in the spring of 1919 he told plaintiff “that the ditch wasn’t sufficient for the water.”
The defendant in substance says that plaintiff knew that the ditch was not carrying 750 inches and that before it could carry that amount of water it would be necessary to enlarge the ditch; that it was known that the water then coming through the ditch was prorated and that it would continue to be- prorated among the stockholders of the company and owners of the 1,500-acre tract so long as less than *464750 inches was delivered, and that it was understood by all concerned, not that Campbell was selling a definite, certain and fixed quantity of water to be delivered at all events each irrigating season, but that he was selling with the land an appurtenant water right which would entitle the plaintiff to receive a maximum of one-half inch per acre or a total of eighty inches just as Campbell was entitled to receive a maximum of one-half inch per acre for the remainder of his land, and that if the maximum allowance was not available the right of each owner being equal in dignity to the right of every other owner, all would be obliged to share in the water deliverable in proportion to their acreage. There is testimony to support plaintiff, and so, to, there is testimony to support the defendant. The trial judge who saw the witnesses and heard them testify was in a far better position than this court can possibly be properly to appraise all the conflicting testimony. The trial court expressly found “that said parties knew” that the ditch was not in such condition as to carry .750 inches “and knew the status of the title to said ditch and water right”; and knew that the method of distribution was to furnish to each stockholder
“such proportion of the entire flow in said ditch as the shares of the capital stock such stockholder held bore to the whole number of shares of said capital stock, and that said corporation was invested with title to said ditch and water right for the purpose of holding the same for the benefit of said stockholders and to manage the same and to distribute the waters to and among said stockholders, each to be entitled to and receive of said water in accordance with the number of shares of capital stock held by each respectively as aforesaid.”
The trial court also expressly found:
*465“That said parties to the aforesaid deed knew of said certificate and of the rules and regulations under which said Sparta Irrigation Company was obligated to distribute the waters flowing’ in said Sparta Ditch; and that said plaintiff accepted and retained the said shares of capital stock so delivered and assigned to her, and became one of the directors of said corporation, and served as its secretary and participated in its meeting’s and availed herself of the benefits accruing to her by virtue of being such stockholder; and that ever since said plaintiff became such stockholder she has, like the other stockholders, received and accepted from said corporation the same proportion of the total flow of water in said Sparta Ditch as the number of shares of capital stock held by her bears to the total issue, all in conformity with said rules and regulations and as in said certificate provided; and that said corporation distributed said water continually to each of said stockholders, including the said plaintiff Mary C. Harvey and said defendant Floyd J. Campbell, pro rata according to the number of shares held by each stockholder respectively, and under which system the said plaintiff received 53 and % five-hundredths as owner of 53 and % shares of said capital stock, and said defendant received 197 and 2/3 five hundredths as owner of 197 and 2/3 shares of said capital stock.”
These findings of the trial court, although contradicted by testimony in behalf of plaintiff were nevertheless based upon substantial evidence offered in behalf of defendant. Plaintiff does not charge Campbell with having made false representations concerning the water; but upon the contrary she states in her printed brief that Campbell really thought that there were 750 inches actually in the ditch and that he was therefore honest in his alleged assertions that there were 750 inches actually in the ditch and available for use. When all the record is examined, *466it seems to the writer that the conclusion must be that Campbell either deliberately falsified and represented that 750 inches were in the ditch or could be turned in, or else he told the absolute truth and represented that the ditch was carrying less than 750 inches, because the evidence shows conclusively that Campbell knew that the ditch did not carry and could not carry 750 inches. A day or two before the arrival of the Wheelers, Campbell, accompanied by Ray Boyd and Mr. Wyatt, went to the end of the ditch, walking part of the way along the ditch and part of the way viewing the ditch from an automobile as they rode along a road paralleling the ditch at different places. On their return from the head of the ditch, Wyatt measured the water at three different places and figured that the ditch was carrying about 500 inches at the places of measurement; and Boyd and Wyatt and Campbell estimated that it would cost about $4,000 to enlarge the ditch sufficiently to carry 750 inches.
Before Campbell purchased he received an abstract of title and submitted it to Charles A. Johns, then a practicing lawyer in Portland, afterwards a member of this court, and now a member of the Supreme Court of the Philippines; and Campbell says that Judge Johns rendered a written opinion upon the abstract of title and at the same time orally informed Campbell that he had been over the whole length ,of the ditch and that the ditch would have to be enlarged before it could carry 750 inches; and, furthermore, Campbell says that Tallmadge told him that it would be necessary to enlarge the ditch to carry 750 inches of water. In this connection it is important to remember that Campbell testified that Judge Johns also “warned me not to state any definite amount” of water whenever he sold any of the land but that a *467deed, patterned after “the others before it” would protect Campbell’s interests. Wyatt is dead. Kay Boyd, an apparently credible witness, corroborates Campbell and says that the measurements referred to by Campbell were made in August, 1917, by dropping a twig at one end of the flume and timing its progress, and that 500 inches was the estimate. One measurement was about three miles while the other was about eight miles from the head of the ditch.
The plaintiff S. S. Wheeler was an important witness. He testified in substance that Campbell represented to Mrs. Harvey that there was plenty of water, that the ditch was large enough for the water, that she would have one-half inch per acre, and in his language “there was no question in any of our matters about the scarcity of water, ’' Wheeler says that he did not know prior to October 8, 1917, whether the ditch was large enough to carry 750 inches, that he did not talk with Mrs. Harvey about whether the ditch would carry 750 inches, that he did not at any time advise Mrs. Harvey regarding the water right or the sufficiency of it, and that he did not recommend to Mrs. Harvey that she buy the land. It is claimed in behalf of the plaintiff Harvey that she did not ask Wheeler “about any information regarding the land or the water,” and that Wheeler made no statement concerning the water except to the effect that if there is plenty of water as Campbell says there is “I can raise a good crop on the land.” It must be remembered that we are now trying to ascertain whether plaintiff knew that the ditch was not carrying 750 inches of water and whether she knew that the water users had been prorating according to their stock holdings, because the fact of her knowledge or lack of knowledge upon the subject is a material *468factor in determining the intention of the parties to the deed. Any deduction that may be drawn from Wheeler’s testimony cannot be destroyed or shunted from the case by declaring that Wheeler was Campbell’s agent and that Campbell is responsible for Wheeler’s declarations, because that question is not here. Wheeler was admittedly the only person on the Campbell ranch who knew anything about irrigation. The substance of Mrs. Harvey’s testimony is that she was very much concerned about whether there was sufficient water for the land and that before purchasing she was careful to obtain assurances from Campbell with reference to the water, and yet it is said that she did not ask Wheeler for information regarding the water notwithstanding she had no knowledge of irrigation and notwithstanding she knew that Wheeler did have such knowledge.
The plaintiff Wheeler was materially interested in a sale. It is admitted that Campbell told Wheeler that he wished to sell his land and that a few days after Wlheeler’s arrival he promised Wheeler a commission of $5 per acre if Wheeler would sell all or a portion of it. Wheeler wrote to two persons about the land but neither of them could be interested. However, Campbell says that when he made the offer to Wheeler the latter “said if he couldn’t sell it all that the girls, he called them the girls, Mrs. Harvey and Mrs. Dunne, he was sure he could sell them each a hundred and sixty acres.” It is a significant fact that Mrs. Wheeler testified that in her letter requesting her sisters, Mrs. Harvey and Mrs. Dunne, to pay her a visit she stated that Campbell “had an immense lot of land and was trying to sell some of it”; and that they answered saying “we don’t want to buy any land, but we will come over.” It is conceded *469that Wheeler received from Campbell a commission of $1,600 or $5 per acre for the 160 acres sold to Mrs. Harvey and for the 160 acres sold to Mrs. Dunne. It is also a noteworthy fact that Mrs. Harvey did not know that Wheeler was to have or that he had received a commission until long after the execution of the deed, and that Mrs. Dunne did not have such knowledge until “a year or two after-wards.”
In addition to what Campbell says he told Wheeler about the carrying capacity of the ditch there is the testimony of Arthur Boyd and Ray Boyd both of whom were users of water out of the Sparta ditch in 1917, and both of whom are apparently credible witnesses. Arthur Boyd explained about Wheeler looking at his place -in September, 1917, with a view of selling it for Boyd, and that in the'Course of the conversation, during all of which Ray Boyd was present and during part of which Campbell was present, Arthur Boyd told Wheeler “I thought we had one of the best water rights in the country when we enlarged our ditch so that we could get more water, get the water the state allowed us, and he said that if we would use our water properly at that time that he believed we had plenty to raise good crops with.”
Referring to this same conversation Ray Boyd testifies as follows:
“So we went up over the place to show him, Mr. Wheeler, Arthur’s place, and we were telling him about what a good water right we had, a good clean water right that went through the courts and we had stipulated with the other users of the stream that used water from the same stream and thought that our water right was beyond reproach, and although we were not getting a half inch of water as we were entitled to and wouldn’t until we enlarged our ditch, *470and he said that if we used the water properly that he believed we conld irrigate all the land under the ditch at that time with the present head of water.”
Campbell insists that prior to the sale to Mrs. Harvey he submitted an abstract of title to her and that she examined it. Two abstracts were received in evidence: One was prepared on July 17, 1917, and the other on December 6, 1917. Each one of the abstracts contains a copy of the certificate of water right issued by the Sparta Irrigation Company to F. W. and L. W. Tallmadge. When Campbell purchased from Warnock he received the abstract of July 17th, and this is the one which Judge Johns examined. Campbell agreed to give an abstract with the deed to Mrs. Harvey, and the abstract of December 6th was prepared in compliance with that agreement and delivered to Mrs. Harvey about December, 1917. Campbell testified that during the negotiations at the ranch Mrs. Harvey asked him if he would furnish an abstract and he told her he would and he says that he told her that he had one with him, and that thereupon he gave her the abstract of July 17th and that she took it and examined it and asked questions about it for three or four days. Campbell says that in addition to this abstract he gave to Mrs. Harvey for her examination the written opinion rendered to him by Judge Johns and also a written opinion rendered by Nichols to Warnock.
Nichols says that when the parties came to his office on October 8, 1917, they had the abstract and also the Johns and Nichols written opinions and that “those instruments were the subject of discussion between us.” Deferring to the abstract, Nichols declared :
*471“My recollection is, and in fact I am confident that this is true, that Mrs. Harvey had examined this abstract and that she had also examined my written opinion of title which accompanied it at that time and the opinion of title to the land and also to the water right furnished to Mr. Campbell by Charles A. Johns. I recall that particularly because of the fact that Mrs. Harvey expressed to me in that conversation her satisfaction with the title to the land, and that came about as I recall it, at least I got the impression from Mrs. Harvey that that was purely by reason of the fact that she had examined this abstract and the opinions of title to which I have referred.”
If it be claimed that the testimony of Nichols is weakened because he used the word “recollection,” and the like, the answer is that in cross-examination he explained: “I have tried to be definite and only testify to what I positively knew.” In considering whether Mrs. Harvey received and examined an abstract before purchasing, it must not be forgotten that she was making an investment of $14,400, and! that she admits that she “asked that he would furnish! me an abstract”; and that she was not without business experience, for she had wheat lands in Umatilla County and had managed that property since 1909, the date of the death of her husband.
Campbell insists that he explained to Mrs. Harvey that it had been estimated on the trip with Boyd and Wyatt to the head of the ditch a day or two before the arrival of the Wheelers that only about 500 inches were coming through the ditch; and Campbell also insists that Wheeler “said right there at that time that there was enough water to water all of the land if they never got any more if it was judiciously-handled.” Campbell asserts that he told Mrs. Harvey that only about two thirds as much water as *472they were entitled to receive was coming down the ditch and that the ditch could he enlarged so as to carry the full amount to which they were entitled for about $4,000. Campbell further testified that at his house at the ranch and prior to the sale Mrs. Harvey
“wanted to know what proportion of the water she was entitled to, and I told her that she would receive with this deed 53y3 shares of stock in the Sparta Irrigation Company which would represent her interest in that company and it would entitle her to fifty-three and one-third five hundredths of the property of the ditch company and fifty-three and one-third five hundredths of the water coming down or through the ditch at any time.”
Nichols testified that on October 8th he explained to Mrs. Harvey, to Campbell, and to the other persons present, his interpretation of the findings and order of determination of the State Water Board and of the decree of the Circuit Court based upon that order “with particular reference to the fact that certain work must be prosecuted on that ditch within the period of five years from the date of the order of determination.” Referring to the certificate of water right Nichols further testified:
“In the course of our conversation that day in the office and in connection with Mrs. Harvey’s questions to me concerning the water right, reference was made to the certificate of water right which is set forth in this abstract on pages 2 and 3 of the first continuation thereof. I do not recall whether Mrs. Harvey brought this matter to my attention or whether Mr. Campbell spoke of it or whether I took it up and called it to the attention of Mrs. Harvey, but it is my best recollection that this certificate of water right was discussed and particularly that provision of this certificate which recites that each of the shares of stock in the Sparta Irrigation Company, a corporation, en*473titled the holder to a proportionate interest in the water available in the Sparta Ditch.”
Campbell says, and Nichols corroborates him, that “due to the instructions that Mr. Johns gave me,” he told Nichols to make the deed “the same as the one that Mr. Warnock had given me”; that Nichols “said to be sure about it” he would go to the courthouse and get an exact copy. Nichols declares that he did go to the courthouse and “took my note-book”; and he further testified “if there is any mistake in this matter it is my mistake with regard to making that transcript, because the parties understood what they wanted.”
Eegular meetings of the stockholders of the Sparta Irrigation Company were held on February 4, 1918, and on February 4, 1919. The minutes of both meetings were recorded in the minute-book by Mrs. Harvey, who was the secretary-treasurer of the corporation. The evidence does not disclose whether or not a meeting of the stockholders was held in 1917. There are four blank pages between the recorded minutes of the meeting held Sepember 23, 1916, and the meeting of February 4, 1918; and this fact suggests the possibility that a meeting was held and space was left for recording the minutes. However, the minutes of September 23, 1916, contain a copy of the form of certificate of water right adopted by the Sparta Irrigation Company and to be issued “to each party entitled to water from said company.” The minutes of the meeting of February 4, 1918, recite: “The minutes of the last meeting were read and approved”; and therefore if the 1916 meeting was the last meeting preceding the 1918 meeting the certificate of water right was either read by Mrs. Harvey or it was read in her presence and hearing *474at the February 4, 1918, meeting. Nichols testified thus:
“At both the meeting held in February, 1918, and in February, 1919, I urged the stockholders and directors of the Sparta Irrigation Company to proceed with the work of the improvement and enlargement of the Sparta Ditch, advising’ them of the fact that this work must be completed on or before the fall of 1920, and that it was necessary that this work be completed and proof of its completion made before the State "Water Board in order to preserve and protect the full right of the Sparta Ditch”;
and Nichols further testified that Mrs. Harvey entered “into those discussions” and made no objection or remonstrance. At the February 4, 1919 meeting the stockholders were considering the advisability of entering into a contract with a contemplated irrigation district, whereby the district, if established, could use the Sparta ditch. The contention of Campbell is that all the stockholders present knew that the ditch must be enlarged so as to restore its former carrying capacity and so as to enable it to deliver 750 inches of water, and that it was suggested that the company could secure the necessary enlargement without expense to its stockholders by permitting the proposed district to use the ditch for carrying its water in consideration of the payment by the district of the expense of enlargement. The minutes written by Mrs. Harvey recite that:
“The Co’s attorney advised that an effort should be made to have the Irriga District, as a part of the consideration for the use of the Co ditch by it, concede after enlargement the prior right of the Co to the use of the waters therein to the extent, of the amount awarded to said Co by the circuit court of Baker Co Oreg; without regard to the present or past carrying of said ditch.”
*475Campbell declares that at the 1919 meeting the fact that the ditch was carrying less than 500 inches at Sparta was discussed and that the plan to improve the ditch was approved by Mrs. Harvey. Bay Boyd says that at the 1919 meeting Nichols spoke of the necessity of enlarging the ditch. Ernest Dill testified to the same effect. J. P. Thrasher testified that after he “bought in” Nichols “generally always” urged the enlargement and improvement of the ditch.
It is claimed that the use of the term “pro rata” in connection with the maximum of 250 inches allowed for seepage and loss in transit, and the failure to use that term in connection with the eighty inches, strongly supports the theory of plaintiff. No one has been so bold as to claim that the deed from Wamock to Campbell operated as an absolute conveyance of a definite and fixed quantity of water or that it conveyed anything more than the water right appurtenant to the 760 acres of land, and yet in that deed the term “pro rata” is used only in connection with the 250 inches allowed for seepage and loss in transit. The water board fixed 250 inches as the maximum allowance and if less than that quantity is sufficient to enable the delivery of 750 inches only such less amount can be added; and consequently it was peculiarly appropriate to use the term “pro rata” in describing an interest in a part of such maximum allowance. The use of the term “pro rata” in the Harvey deed in connection with the 250 inches is of no more evidentiary value in support of the plaintiff’s contention than such use in the Warnock deed would have in support of any claim that Warnoek conveyed 376% inches of water rather than a water right appurtenant to the land under which he was entitled to use 376% inches.
*476In 1917 after Campbell purchased, the ditch was carrying at full capacity between 375 and 380 inches. Campbell thought that it was carrying 500 inches when he conveyed to Mrs. Harvey and it may be fairly assumed that he was of that belief when he sold to Mrs. Dunne, and that he had not yet learned that the ditch was not carrying’ more than 360 inches. It must be remembered that the plaintiff does not charge that Campbell made any false representations about the carrying capacity of the ditch or about the amount of water in it, for the most that is claimed is that he honestly believed that the ditch was carrying or could carry 750 inches, and acting on that belief made the alleged statements; and it must be remembered that Campbell knew ■ that it had been estimated that the improvement would cost $4,000. Out of the 500 inches supposed to be coming through the ditch Campbell was entitled to 251 inches. If he sold eighty inches to Mrs. Harvey and eighty inches to Mrs. Dunne for the irrigation of an aggregate of 320 acres he would have had left out of the supposed 251 inches only ninety-one inches for the irrigation of 440 acres. It is not to be supposed that he would have done that.
The following facts are either admitted or conclusively proved by the evidence. The owners of the 1,500-aere tract formed a corporation for the purpose of buying the Sparta ditch and water right so that they could irrigate that land. They subscribed for corporate stock in proportion to the number of acres owned by them. In order to obtain money with which to buy the ditch the owners of the land conveyed the land to the corporation so that it could mortgage the land. A mortgage was given and then the corporation conveyed the land back to the owners subject to *477the mortgage. In this mortgage was a provision enabling any owner by paying his pro rata part of the mortgage to have his land released from the mortgage. The stockholders provided for the issuance of a certificate of water right to each owner of land and holder of stock; this certificate was based upon the proportion of stock ownership and the stock ownership was in turn based upon the proportion of land ownership. A certificate of water right was issued to the Tallmadges by virtue of their ownership of the 760 acres afterwards acquired by Campbell, and this certificate was accepted and agreed to by the Tallmadges and recorded by them. The capacity of the Sparta ditch in 1917 was only about 380 inches, although at least three of the water users including Campbell believed that the ditch was carrying 500 inches. The Sparta Irrigation Company was given until January 1, 1921, to utilize the full allotment of 750 inches for the 1,500 acres, and in order to make use of that quantity of water it was necessary to improve the ditch so as to restore it to its former capacity. Prior to the sale to Mrs. Harvey the water coming through the ditch was prorated among those entitled to water; and the water continued to be prorated after the purchase by Mrs. Harvey. The plaintiff Harvey knew when she purchased that she was to receive as a part of the transaction 53% shares, or a pro rata part, of the capital stock of the Sparta Irrigation Company; and that number of shares was assigned to her and voted by her at the stockholders’ meetings of February 4, 1918, and February 4, 1919. The duties and obligations as well as the rights of the water users were from the beginning and at all times prorated. The trial court found that Mrs. Harvey knew all these.facts.
*478The findings of the trial court were for the defendant as to all of the disputed questions of fact; and although the evidence is conflicting, the court resolved the conflict in favor of the defendant. There was an abundance of evidence to support the conclusion reached by the trial court. That court was in a far better position than this court properly to appraise the testimony. When the deed is read in the light of the findings and order of the water board, of the fact that as a part of the purchase plaintiff knew that she was to receive her pro rata part of the capital stock of the corporation, and of the surrounding circumstances as found by the trial court, it becomes clear, it seems to the writer, that the parties intended to do by the deed exactly what defendant claims they intended to do.
The decree ought to be affirmed.
Rand, J., not sitting. McBride, C. J., concurs in the dissent.