(dissenting). With the opinion of the majority and its result I regret that I cannot concur. No detailed analysis of the long record and elaborate exposition of my views would be of probable value. I outline merely the main grounds of my dissent.
(1) The opinion of the majority is inconsistent with the opinion of the court, consisting of Judges 'Dodge, Bingham, and Aldrich, when the case ivas here before. I agree with the former opinion written by Judge Dodge. In that it was held that the contract between the plaintiffs and Porto Rico is 'to be construed as a grant of water belonging to Porto Rico, to be interpreted under the usual rule of strict construction against the grantee. Russell v. Sebastian, 233 U. S. 195, 205, 34 Sup. Ct. 517, 58 L. Ed. 912, L. R. A. 1918E, 882, Ann. Cas. 1914C, 1282. The court then said concerning the plaintiffs’ rights (240 Fed. 261, 153 C. C. A. 182):
‘Tts rights under the contract were rights granted directly by said people. It could claim no rights as riparian owner merely. See Trujillo et al. v. Succession of Rodriguez (heretofore decided in this court) 233 Fed. 208, 147 C. C. A. 214. The water which both the plaintiff and those defendants who were operating the ‘Boca-Chica’ estate were taking,when the bill was filed was then being delivered to them respectively by said people, in pursuance of agreements on its behalf through the proper authorities. To interfere with the agreed deliveries to the defendants was also to interfere with the-agreed payment to be made therefor to said people. Interference with the defendants’ intake as reconstructed to receive said agreed deliveries was interference with structures which the people had expressly required and authorized the defendants to erect for the purpose of receiving the excess water to be received and paid for as above. The invalidity of the grant made and the authority given by said people to the defendants, asserted by the plaintiff, *733could be found by the court to exist only in ease it adopted the construction claimed by the plaintiff, but disputed by the defendants, of certain provisions in said people’s prior grant to the plaintiff. The construction contended ■ for materially affected the administration of the irrigation service maintained 'by said people.”
And again (240 Fed. 263, 153 C. C. A. 182):
“Aside from the above question of parties, the court could not justifiably disturb such a situation by injunction at the instance of a party asserting rights under an earlier contract with the same public authorities, unless the earlier contract clearly appeared to have covered what they were permitting the defendants to receive under their subsequent grant.
“It cannot be said that the plaintiff’s contract of August 2(5, 1914, plainly vested in the plaintiff such rights to excess water as it now claims. The terms of the third paragraph, whereon the plaintiff relies, do not, in express terms, grant any right to excess or surplus water. Neither expression is used, and the burden was on the plaintiff to establish the construction for which it contends as the true construction, in view of all the other provisions of the contract and the circumstances therein referred to.” (Italics mine.)
But in the majority opinion it is now stated:
“We do not regard it material whether this provision of the contract be regarded as a grant or as a simple contract, as in either event we are called upon to ascertain, if we can, what the parties intended by the language used, viewed in the light of the circumstances surrounding them at the time the contract was made.”
Obviously, the latter part of this sentence adds nothing to the first part, which asserts it to be immaterial whether the contract be a grant or not. Intent, of course, always governs both in grants and in simple contracts, if plainly expressed. But when, as in this case, the contract is so hazy and ambiguous as to cause the differences disclosed in the majority opinion from the views expressed • when the, case was here before, as well as the differences of view in the court as now constituted, it is very material whether the contract is to be regarded as a grant, and subject to the rule of strict construction, or is to be construed as a simple contract.
While it may be technically true that the former decision was limited to deciding that Porto Rico was entitled to> be heard, yet, in reaching that conclusion, views were necessarily formed and expressed as to the rights and relations of the parties, including the interpretation of the contract as a grant. The present record is, in no important legal aspect, distinguishable from the former record. Practically, therefore, if not technically, the situation is within the important principle of stare decisis. I think the court should now adhere to the former interpretation of the contract as a grant, and should also apply the sound and well-established rule that public grants are to be strictly construed against the grantee. Bong experience and conclusive authority show that only thus are public rights adequately safeguarded.
That the plaintiffs have no case, if the contract is construed as a grant, is, in effect, conceded by the plaintiffs’ own able counsel. For, near the close of their lengthy brief, in which they carefully review the evidence and urge every conceivable consideration in favor of *734their view, they find themselves driven by the paucity of supporting evidence to take the utterly untenable position that the burden is upon Porto Rico to show the plaintiffs are not entitled to have the water in question flow down to the Aruz pump. This is a perhaps unconscious, but practically conclusive, admission that, construing the contract as a grant, they have failed to sustain the burden of showing that it plainly covers the water contracted to be sold to the Boca-Chica estate.
(2) I cannot construe the record as showing, or the lengthy brief of counsel for Porto Rico, when read as a whole, as conceding, that “the defendants diverted by means of the Maturi Dam all the water from Aruz pump in excess of .79 second feet.” Counsel in their brief quote as uncontradicted evidence the testimony of Giles, chief engineer of the irrigation service, that—
“After the construction of the Maturi Dam some water was allowed to flow down to the Aruz pump through an opening which was provided in the dam when it was constructed, so that the water could flow down. The amount of water that flowed down was not less than one cubic foot per second during the time there was water in that part of the river.” (Record, p. 183.)
Obviously, “not less than one cubic foot per second” is substantially more than tire .79 second feet; and this was water flowing over the Maturi Dam at the upper end of Maturi Pool. But even if the majority are correct, and not in error as I think, in construing the brief of counsel as conceding the diversion of all the water beyond .79 second feet, this court has no right to deal with substantial public interests on the basis of concessions of counsel, who simply briefed'a record already made. It is the record, not the brief, which must determine ■ the action of this court. Concessions of counsel, constituting a part of a record, are on a very different basis; frequently they bind.
But this overflow at the Maturi Dam was not all the water available at the Aruz pump; for the undisputed facts as to the physical situation show conclusively that underground or seepage water gathered in the lower parts of. the pool, when the stream was dry' for long distances above the pool; i. e., when there was no surface water to flow over the Maturi Dam or for diversion to Boca-Chica. The Maturi Dam was 774 feet above .tire Aruz pump, and at a grade 2.9 feet higher than the Aruz pump, which was at the lowest point in the pool. Plainly, the Maturi Dam could not cut off the filtration water appearing in this slope of 774 feet below the dam. While it is true that Engineer Giles testified that the irrigation officials did “not with conscious intent” let down through the Guayabal Dam more than enough to supply the .79 second feet required for regular deliveries, yet it is very plain, both from the physical conditions and from the record as a whole, that substantial amounts of water must and did appear at Maturi Pool, derived in large part from the filtration water most abundant at the lowest point (viz. the Aruz pump), and under ordinary conditions increased substantially by excess overflow at the Maturi Dam, over which the irrigation officials allowed enough to flow, when there was water in that part of the river, to *735make certain full delivery of the .79 second feet required under the contract. As absolute accuracy would, under the conditions, be impossible, it is plain that substantial quantities of water would be available at Hie Aruz pump. While such total diversion may have temporarily occurred, as Hanson’s evidence, quoted by the majority, indicates, the record as a whole, as I construe it, shows such diversion to be accidental, or only during a period of excessive drought.
Water thus derived from these two sources- — filtration and some overflow at the Maturi Dam — -was, in my view, the water contemplated as “available at the Aruz pump,” in the language used in paragraph 3 of the contract.
Such was the construction put upon the contract by the irrigation officials after more than a year’s experience of the -changed and changing conditions caused by the operation of the irrigation system. 1 do not think the plaintiffs have sustained the burden of showing that the officials were wrong, and that the water diverted at the Maturi Dam was not excess water which it was the right and duty of Porto Rico to sell. The record is singularly obscure and inadequate. At most it raises no more than a feeble doubt as to whether the water in question was excess water or water covered by the plaintiffs’ contract. It does not even appear how much water was actually delivered to the Boca-Chica estate at the Maturi Dam. It was a question of fact whether the water diverted to Boca-Chica was excess water. The officials familiar with the somewhat complicated conditions determined that it was. I think they were right. At any rate it does not plainly appear that, they were wrong.
(3) The majority opinion ignores the fact, that the water now held contracted to the plaintiffs must come in substantial part from the Toro Negro river, a source in which not even the plaintiffs’ counsel venture to assert that they have lights. Their old concessions were of course limited to water available in the Jacaguas Valley on the south side of the water shed. All the witnesses agree that the water now in controversy accrued in substantial part from pressure of the additional water behind the Guayabal Dam. That pressure was necessarily increased by the water brought from Toro Negro through the new tunnel.
The third paragraph of the decree ordered is:
“That by virtue of said contract the plaintiffs are entitled to have the surplus waters in the Jacaguas river as above defined flow down the bed of ■said river from below the Guayabal Dam to the said Aruz pumping station without dwerston or interference by the defendants or the mtervener.”
This, applied to the facts, amounts to requiring that Porto Rico shall allow some — we know not how much- — Toro Negro water to flow down the bed of the Jacaguas river, in order to become available to the plaintiffs at the Aruz pump. We cannot know that thus they may not overrun the full amount of the aggregate of their old concessions. It certainly gives the plaintiffs some water to which they have not a vestige of legal right.
(4) Moreover, the statutory power to contract was limited to “equivalence in value.” The result reached plainly gives the plain*736tiffs, not equivalence, but large profits, out of this public irrigation system. Under the decree ordered they are practically certain to get at least the full amount of their old concessions, and delivered with substantial regularity. Now the record shows, and it is obvious, that regularity of delivery is a factor of prime value in any irrigation system. The plaintiffs offered no evidence that, during the diversion complained of, they were not receiving water the full “equivalent in value” of their old concessions. But they did contend that—
“All that the contract of August 26, 1914, was intended to do or did was to change the method and time of the delivery of a small part of the concession waters.”
This contention, in effect adopted by the majority, puts a construction upon paragraph 3 of the contract resulting in large profits to the plaintiffs at the expense of Porto Rico or the other water users who must be taxed for all expenses not defrayed by the sale of excess water. Such result I think unconscionable and inconsistent with the fair interpretation of the contract.
(5) The record, though bulky, is singularly meager in relevant and lucid evidence. The fact that both the plaintiffs, and Porto Rico agree that, at the time of the contract, it was known that, because of the increased weight of water behind the Guayabal Dam, more water than formerly was appearing at the Aruz pump in the Maturi Pool, does not, I think, support — it controverts — the plaintiffs’ contention that the parties intended the contract to cover the entire additional supply, whether it came down in the surface of the river through or over the Maturi Dam, or whether it appeared by seepage in the intervening 774 feet of slope between that dam and the Aruz pump. If the parties had intended the contract to cover all the increased supply, from whatever source, and whether flowing above or below the surface, words apt and unmistakable to effect such intention would have been used, as Judge Dodge pointed out. 240 Fed. 264, 153 C. C. A. 182. That the irrigation officials did not so understand the contract is conclusively shown by their conduct. That the words used, construed as a grant, do not warrant such interpretation, was the view of this court when the case was here before, and is, in my confident judgment, the only fair and sound interpretation of those words.
I think the decree below should be reversed, and the bill dismissed.