(dissenting).
I dissent since I think it was error to exclude parol evidence tending to show the water in question was appurtenant to the land, under a contract that did not *77specify what water was or was not appurtenant thereto. The trial court said the evidence offered tended to change the terms of an unambiguous and certain contract. What is certain about the word, "appurtenant,” without further explanation? What water, under the terms of this contract, was “appurtenant” and what water under the terms of this contract was not “appurtenant?” Plaintiffs introduced evidence, later stricken as being violative of the parol evidence rule, — a conclusion that I am convinced was erroneous, — to the effect that 1) the water represented by the certificate had been used on the land for nigh onto a half-century; 2) that the plaintiffs themselves had used it for two years; 3) had paid the assessments thereon; 4) that the land had good water rights with the 7Vi shares but only fair without them; 5) that defendants said the water went with the contract during negotiations for sale; 6) that plaintiffs listed such water in a record jotted down at the time; 7) that the advertised $22,000 purchase price was jacked up to $23,500, according to defendants’ purported statement, in consideration of plaintiffs obtaining full water rights; 8) that defendant said he had misplaced the certificate but would produce it later; 9) that the escrow representative, in the presence of all, stated the certificate would be produced by the grantor because the latter was an ex-bishop; 10) that the real estate agent confirmed such conversation; 11) that the shares were included in the realtor’s worksheet, and that he included the shares on the back of the listing agreement.
All of this evidence tended, not to alter-any term of the contract, .but to explain what water was to be included in the word, “appurtenant,’’.there being no water specified in the contract other than as being “appurtenant.” I challenge anyone to point to any word, phrase, paragraph, condition, term or anything else in the contract that such evidence tended to change, alter or modify in any way other than to explain what vhe word, “appurtenant,” was intended to mean by the parties thereto. It certainly did not tend to change the word, “appurtenant,” to any other word, or to change any specific water right mentioned in the contract, since none was mentioned.
The trial court in my opinion, was inconsistent in striking down the evidence which he claimed violated the parol evidence rule, while at the same time admitting the escrow agreement, which was introduced for exactly the same purpose, —to explain the contract. The escrow agreement was a separate and distinct document and had no more probative dignity than the evidence offered by the plaintiffs. Such evidence is identical in pro-' bative quality in explaining or modifying the contract as was that offered by the *78plaintiffs. If the plaintiffs’ evidence tended to modify the contract, so did the defendants’. If defendants’ evidence tended to explain the contract, so did the plaintiffs’, and no amount of logic can come to any other conclusion.
To further illustrate the . inconsistency of the trial court’s action in this case, in which apparently he considered the listing of the water stock in the escrow agreement as determinative of that included in the word, “appurtenant,” in the sale contract, he failed to note that 40 shares of Deer Creek water, not listed in the escrow agreement was conceded to have passed with the contract under the “appurtenant” provision. If such water passed under such clause, why would it be strange to admit evidence to show that the TYz shares likewise were intended to pass under the same provision ? The stricken evidence tends to prove the 7Yz shares were intended to pass under the “appurtenant” clause exactly as the parties conceded occurred with respect to the Deer Creek shares.
Both sides cite the Brimm case. This writer dissented in that case on the ground that a statute obviously designed to clarify, not obscure, water rights, was interpreted by the main opinion to substitute one presumption for another, which latter presumption the statute obviously intended to eliminate. What the Brimm case did, in the light of a clear, unambiguous statute, was to answer the question as to who was entitled to the water evidenced by a stock certificate simply by shifting the burden of proof from the certificate holder to the possessor of the land, and again no amount of logic can come to any other conclusion. After the Brimm case it became impossible for the practitioner to examine an abstract of title without pointing out that where incidental water rights, past, present or future, are evidenced by a stock certificate, such rights cannot be determined unless and until the presumption of ownership in the certificate holder has been adjudicated in perhaps an expensive lawsuit, — all without benefit of any protecting limitations statute. The case should be reversed so as to breathe life into a statute pronounced dead by this court, which obviously was designed to clear up water rights, rather than to obscure them with a presumption.
If the Brimm case is not reversed, this case should be remanded with instructions that the trial court consider the evidence stricken as rebutting evidence and to enter findings and conclusions thereon, one way or the other. In this respect, under the state of the record, it is my opinion that a jury or judge as arbiter of the facts depending upon what evidence is believed well might conclude in favor of either of the parties.