(after stating the facts as above).
Tbe contention first made by appellant on this appeal is that tbe court’s fourth finding of fact is not only unsupported’ by, but is contrary to, tbe evidence. This assignment of error involves tbe following propositions: (1) "Was tbe contract in question assigned or transferred to appellant ? (2) Has appellant tbe legal title to a sufficient amount of water in North Ogden Irrigation Company to enable her to perform and comply with tbe terms and' conditions of tbe contract? (3) Is she able, ready, and willing to perform all of tbe conditions of tbe contract to be performed on her part ?
We think that all of these propositions must be answered in tbe affirmative. N. P. Mathews testified, and bis evidence is not disputed, that at tbe time of tbe conveyance to appellant of tbe land on which the Rice Creek water in question has been used tbe contract was delivered to him as agent for appellant by her grantors; that during tbe intervening five years between tbe time of tbe conveyance of tbe land and tbe commencement of this action be was in charge of, farmed, and improved tbe premises for appellant; and that during this time tbe land was supplied with “exchange water” covered by tbe contract.
1 Tbe law is well settled that tbe delivery of an instrument such as tbe contract in question when supported by a valuable consideration is sufficient to pass whatever interest tbe transferror may have in or to tbe instrument. In 4 Cyc. 44, tbe rule as declared by practically all of tbe authorities is stated as follows:
*181“When supported by a valuable consideration, no writing is necessary to tbe assignment of written instruments, and tbe delivery of tbe ebose in action, or tbe written evidence of tbe right, debt, or title, will be sufficient to pass tbe beneficial interest therein”—
Citing many cases.
2 Regarding tbe second and third propositions, tbe evidence shows conclusively that she has tbe legal title to tbe Cold Water Creek water which Berrett for seventeen years has used, under tbe contract, in exchange for tbe Rice Creek water used by appellant and her predecessors in interest ; that she has tbe legal title to a sufficient amount of tbe capital stock of tbe North Ogden Irrigation Company to enable her to continue to furnish to Berrett tbe Cold Water Creek water as provided in tbe contract, and that she is not only able and willing, but anxious, to perform all of tbe conditions of tbe contract required of her by its terms. Bindings of fact No. 4 are, therefore, not only unsupported by evidence, but are contrary to evidence of tbe most positive and conclusive character.
In its seventh finding of fact tbe court found:
“That, while tbe plaintiff .has continued to improve the real estate of which she was in tbe possession and described in tbe complaint, such improvements or expenditures were not made or incurred by reason of any act or conduct of any kind on tbe part of tbe defendant Berrett.”
Tbe court also found (No. 8) :
3' “That there is no evidence in this ease that tbe plaintiff cannot secure other Rice Creek water or water from other sources to properly irrigate tbe lands in question and described in tbe complaint.”
These findings are assailed on tbe ground that they are-not sustained by tbe evidence. Tbe testimony of N. P. Mathews, who was tbe agent of tbe appellant, and who for five years next preceding tbe commencement of this action, as such agent, was in charge of tbe premises and land upon-which tbe Rice Creek water in dispute has been used, shows that be made improvements on tbe land of the value of $8000, and that these improvements were, made in reliance *182upon tbe right of, appellant to use the so-called “exchange water” on the lands. And the undisputed evidence shows that B'errett acquiesced in the use of the water by appellant and her predecessors in interest for seventeen years under the contract, including the five years during which the improvements last mentioned were made. And the evidence also shows that there is no water available for the irrigation of appellant’s land other than the exchange water” from Bice Creek heretofore used thereon. N. Montgomery, on this point, testified as follows:
“The only water source this property has known during all these years (thirty-five or forty) has been the waters of Bice Creek. . . . These lands have no other source than Bice Creek after the flood waters.”
These flood waters disappear from the 1st to the 15th of July each and every year. N. P. Mathews testified, in part, as follows:
“There has been no other source for irrigating the land than Bice Creek. ... I have no other water that can be diverted for that purpose; and it is necessary to irrigate these lands during the months of July and August and late in the season of each year.”
E.. B. Shaw, another witness for appellant, testified that:
“The Mathews (appellant) land would be worthless so far as the orchard or anything like that is concerned, if the water of Bice creek were shut off.”
We think this evidence, which is not denied, precludes any inference that there is any water available for the irrigation of appellant’s land other than the Bice Creek water. And we think that the evidence shows that during the irrigation season there is no surplus or unclaimed water in Bice Creek. In fact, the record shows that occasionally there is a “shortage” of water in Bice Creek. In the face of this evidence which is not disputed, the court’s findings of fact Nos. 7 and 8 cannot be upheld.
Counsel for respondent Berrett contends that the contract on its face shows “it was only contemplated between the parties to be a temporary affair, .or, in other words, it was not *183to be permanent, and was to exist only during tbe pleasure of tbe parties.” In bis discussion of tbis question counsel says:
“Tbe very language of tbis contract wherein Berrett agrees to let Sbaw bave water precludes tbe idea of a permanent trade. It is true no limit of time is stated in tbe contract,' and it is equally true that tbe certificates of stock representing tbe water in question were never transferred by Ber-rett, wbo always paid tbe taxes levied against tbe stock.”
Of course, tbis contract can be terminated by tbe mutual consent of all tbe parties wbo bave a beneficial interest therein, but that is not tbe question here involved. Tbe question here presented is, May Berrett, under tbe undisputed facts of tbis case which show that appellant has performed every duty required' of her by tbe terms of tbe contract, and wbo is ready, able, and willing to continue to discharge every obligation imposed upon her by tbe instrument, terminate it against tbe wishes of appellant and without her consent, and thereby cause her great and irreparable damage? In construing contracts, tbe rule is elementary that, where tbe meaning of tbe parties is not clear regarding some essential part or feature of it, courts will, in determining what tbe intention of tbe parties was, consider not only tbe nature of tbe instrument, but will take into consideration tbe circumstances and conditions surrounding tbe parties executing it and tbe objects they bad in view and which prompted them to make tbe contract, as shown by tbe evidence.
In 2 Page on Contracts, see. 1123, tbe author says:
“It is a recognized rule of construction tliat the court will place itself in the position of the parties who made the contract as nearly as can he done by admitting evidence of the surrounding facts and circumstances, the nature of the subject-matter, the relation of the parties to the contract, and the objects sought to he accomplished by the contract.”
See, also, 9 Cyc. 587. Applying tbis rule of construction to tbe contract in question, we find that tbe exchange of tbe Rice Creek water in controversy was made by Berrett *184with appellant’s predecessors in interest for Cold Water Creek water about 1870 or 1872, and' this exchange continued without interruption' until just before the commencement of this action. As hereinbefore stated, the written contract was executed in 1892. In the meantime valuable and permanent improvements were made on the land upon which this Nice Creek water was being used. N'ot only these improvements, but the land itself, would be rendered practically valueless without this. Nice Creek water.
The evidence shows that Berrett, when he entered into the written contract, could not use the water of Bice Creek on his lands. On this point J. B. Bailey, a witness for appellant, testified as follows:
“I have been acquainted with the cultivation of the Mathews (appellant’s) lands for the past twenty-one years. During that time these lands have never used any water from what is known as Cold Water Creek. They cannot do so.” The witness further testified, and his testimony is not denied:
“I know Mr. Berrett, and where his lands are. They are below what is known as the Cold Water Ditch.”
Taking into consideration the valuable property interests of Berrett and of plaintiff’s predecessors in interest that had been acquired and created by them through this exchange of water, in connection with all the other facts and circumstances leading up' to and surrounding the execution of the contract, we think it may be fairly inferred that the parties to the contract executed the same for the purpose of protecting and perpetuating these property interests, and that it was their intention that the contract should continue in force until terminated by the mutual consent of all parties owning a beneficial interest therein. The contract was executed June 7, 1892. Now let us suppose, for the sake of illustration, that in July or August of that same year, when the use of the Bice Creek water was indispensable to the saving of the orchard and the growing of the crops on the lands mentioned, Berrett had refused to further comply with the terms of the contract, and had attempted to take *185tbe Bice Creek water from tbe land and terminate tbe contract, is it not plain tbat appellant’s predecessor in interest, Elijah Sbaw, could bave gone into a court of equity and compelled Berrett to specifically perform bis part of tbe contract? Undoubtedly be, Sbaw, under sucb circumstances, would bave been entitled to equitable relief. Berrett having acquiesced in tbe use of tbe Bice Creek water on tbe land referred to for seventeen years, during which time valuable and permanent improvements bave been placed upou tbe land in reliance on tbe use of tbe water in dispute, all of which improvements as well as tbe land would be practically valueless without tbe water, we think a¡ much stronger reason exists for equitable relief than in tbe hypothetical case above stated.
We are clearly of tbe opinion tbat appellant is entitled to tbe relief prayed for in her complaint. This case differs materially from tbe ease of Montgomery v. Berrett, 40 Utah, 385, 121 Pac. 569, recently decided by this court. In tbat case there was a sharp conflict in tbe evidence regarding tbe terms of tbe alleged parol agreement for tbe exchange of water, and tbe court there found, among other things, “tbat tbe proofs in tbe case are not olear and satisfactory or sufficient to warrant tbe court to order a specific performance of the said alleged contract.” Whereas, in tbe case at bar, there is no substantial conflict in tbe evidence on any material issue in tbe case.
Tbe cause is remanded, with directions to tbe lower court to set aside its findings Nos. 4, 7, and 8, heretofore made and filed in tbe case, and to vacate tbe judgment rendered tbei’eon, and to make findings and render judgment in accordance with tbe views expressed herein, appellant to recover her taxable costs in this and in tbe lower court.