(concurring).
I concur in affirming the judgment of the trial court insofar as it held that appellants were not entitled to recover. Another ground for denying recovery goes back to the prior hearing involving this same matter and these same parties. See 15 Utah 2d 271, 391 P.2d 300.
In 1936, Annie C. Maw and the Ogden Duck Club, hereinafter referred to as the Duck Club, entered into a contract whereby Mrs. Maw gave a right of way over her land for the use of members of the Duck Club, and in consideration therefor the Duck Club promised that so long as Mrs. *198Maw’s .three sons lived, each could hunt on the club and use the facilities free of charge. The Duck Club put a further limitation in that the clubhouse should be maintained on Sec. 12, Tp. 7 N., R. 3 W., S.L. Base and Meridian.
When the Weber Basin Water Conservancy District, hereinafter called Weber Basin, began to condemn land for the construction of Willard Dam and Reservoir, it undertook to purchase without condemnation proceedings about one thousand acres of land formerly owned by Annie C. Maw and at the time in question owned by W. John Maw and Sons, a corporation, and Grace B. Maw.
Through some deal between the landholders, the Duck Club, and Weber Basin, the Duck Club gave a quitclaim deed to the landowners for the old right of way given by Annie C. Maw, and Weber Basin gave a new right of way over a new road to the Duck Club.
The Duck Club moved its clubhouse a short distance but not off of Section 12, as above. It continued to maintain its shooting grounds as formerly.
At the original trial the trial court dismissed these appellants’ claim as to both the Duck Club and Weber Basin. This court affirmed the trial court insofar as the dismissal of the Duck Club was concerned and reversed the trial court as to Weber Basin, and by doing so it committed two patent errors.
In the first place, the Duck Club breached its contract in terminating the hunting rights belonging to the three sons, who were third-party beneficiaries under the contract between Annie C. Maw and the Duck Club. It was obligated to allow the sons to hunt so long as it maintained shooting grounds and the clubhouse on Section 12.1 Since it was doing both, it had no right to terminate the privileges of the three sons while they lived. It got paid for the right of way in the deal whereby it got a new road to the Duck Club in lieu of the old road.
In the second place, it was error to hold Weber Basin liable, for Weber Basin took nothing from the sons. The sons still had hunting privileges except for the wrongful conduct of the Duck Club.
The manager of Weber Basin wrote to the landowners the following:
It is our understanding that you have executed a contract for the sale to the United States of Tracts Nos. 95, 104 and 106, Willard Dam and Reservoir.
This letter will assure you that the land purchase contract does not cover your i other property in the Willard Bay area,' and specifically your state leases, water rights, easements, licenses, duck club shooting privileges or land other than those described in the land purchase contract. Any such property interest which will be required in the construction of the dam or which will be damaged or de*199stroyed 'will be appraised at a later date and an offer to purchase will be made. (Emphasis added)
No hunting right was ever required in the construction of the Willard Dam and Reservoir and none was ever taken by Weber Basin.
This court was in error when it heretofore held that Weber Basin was liable, and we should now acknowledge it. If any of these appellants have been damaged at all, such damage was caused by the conduct of the Duck Club and not by Weber Basin.