(dissenting in part) :
I agree that the plaintiff has shown no basis for voiding the exchange agreement. But I think the court’s opinion fails to allow the plaintiff and the shareholders the rights that contract gives them. It seems to me that a fundamental difficulty is encountered enroute to its conclusion. The only right Salt Lake City has to the waters of the Green Ditch derives from the contract referred to. The City and the plaintiff’s shareholders are bound by their contract and their rights are permanently fixed by it; neither lapse of time nor manner of use have changed them. The City does not and could not contend otherwise. We therefore look to the contract.
I submit that it is so plain as to be unmis-; takable that the contract does not convey, the water in dispute to Salt Lake City, but provides to the contrary in clear and'certain terms. In connection with the conveyance of the waters of the Green Ditch to -Salt Lake City it states that: , ;
“Each of the parties [the shareholders]' hereto reserves am ownership in and thé right to the constant■ arid perpetual use■ *232* * * 0f water, in said Green Ditch * * * [describes quantity of water amounting- to 500 gallons per day from October 1st to April 1st and 900 gallons per day from April 1st to October 1st for each share of water].”;
and the agreement further states that the quantity of water, “as above set forth and title- retained, thereto,'is as follows, to-wit: [listing shareholders and amount owned] ¡(i * *»
It is significant to note that the contract does not state that the parties reserve the right to use up to 500 gallons, or up to 900 gallons, per day, and that the amount unused belonged to the.City. However, that is the practical effect of the court’s decision. Had that been the intent, it could easily have been so stated. But the contract unequivocally reserves to the shareholders the ownership and the right to use that total and definite quantity of water. The ownership of water includes the right to use, and also to sell, lease, transfer or assign it. Baird v. Upper Canal Irrigation Company, 70 Utah 57, 257 P. 1060. The contract itself recognizes this and refers to the owners, “their successors or assigns.” The plaintiff Green Ditch alleges that it is the assignee of all of the shareholders. On summary judgment against it this should be taken as true., Thus, plaintiff Green Ditch Company has the right to use the full quantity of water specified for each share, multiplied by the number of rights of which it proves it is assignee. I fail to see in the summary record before us any basis for even a conjecture that plaintiff is claiming only the “unused water.”
If a person holding one share has a right to use the quantity of water due for one share, and he obtains by purchase or assignment another share, he becomes entitled to receive another such quantity of water; and if he obtains five shares, he is entitled to five such quantities, or 10, or 20, or any number of such quantities due the number of shares he acquires. I cannot see why this is not also true of the plaintiff company, nor why it should not be entitled to the total of the water represented by any number of rights under the contract of which it is assignee. This is not altered by the fact that the contract also provides that if any water owner uses in excess of the quantity of water to which he is entitled, he shall pay for the same at the regular Salt Lake City water rates. It must be conceded that under such provision if the plaintiff, or any other user, should use water in excess of that due under the rights it holds, it would have to pay as stated.
The question which must be confronted and answered is by what means the City can become owner of water not conveyed to it by the contract. It is urged that this result is brought about by the holding in *233Salt Lake City v. McFarland, 1 Utah 2d 257, 265 P.2d 626. To this proposition there are two answers: (a) McFarland does not compel any such anomalous result, and (b) even if it did, it would be to that extent wrong and unjust. I do not interpret that case as dealing with the issues involved here. There, McFarland as an individual shareholder and user of city water under the agreement was seeking to avoid being billed by the city on a monthly basis and claimed the right to average his monthly consumption of water on a semi-annual or annual basis. Among the unique characteristics of water as property is that it is more valuable during some months of the year than others. The inequity and unfairness of permitting McFarland to take less water when it was less in demand and therefore less valuable and to take more water when it was more in demand and thus more valuable was recognized and he was not permitted to average out his monthly usage.
But the decision of the McFarland case just referred to should not be confused or distorted into a ruling that the holder of a share, or any number of rights to receive water (such as plaintiff) cannot demand and receive in any month the full quantity of water due under the contract for each right it holds. The contract requires the City to deliver that amount of water, and if that is all it is required to do, it has no just cause for complaint. When the water is so delivered, the shareholder, which includes any assignee or transferee of a share or shares, should be able to use or dispose of the water in any lawful manner, or to drink it out of the spout if he so desires. In regard' to the plaintiff’s claim to the aggregate of all of the water of the Green Ditch shareholders as their assignees, we do not have to concern ourselves with what arrangement it has or may make with them, except to say that neither the plaintiff nor its shareholders can impose any greater obligation or burden on the City than it undertook by the terms of the contract: i. e., to deliver for each share the quantity of water originally contemplated by the parties and stated in the agreement when it was executed: for each share 500 gallons per day during the winter and 900 gallons per day during the summer.
I do not agree with the statement as to limitation of the issues raised on appeal. In view of the decision of the majority of the court it would serve no useful purpose to discuss plaintiff’s other contentions. (Emphasis ours.)
McDONOUGH, J., concurs in the views expressed in the opinion of Mr. Justice CROCKETT.