Skinner v. Graham Canal Co. , 79 Ariz. 214 ( 1955 )

PHELPS, Justice.

This cause has been twice before this court and opinions rendered therein are reported in 77 Ariz. 5, 266 P.2d 392, 396, and in 77 Ariz. 137, 267 P.2d 1074. The original opinion in the case, as will be seen by reference thereto, construed a written contract between the Graham Canal Company, a corporation and the Oregon Canal Company, a corporation, merging the two corporations and providing for the allotment and distribution of the water available for irrigation as between the landowners under the old canals of the respective corporations. The second opinion was written on petition of appellant asking for a clarification of the first opinion.

The original opinion reversed the judgment of the lower court and remanded the cause to that court with directions to enter judgment declaring the contract valid and requiring its specific performance as therein interpreted.

Appellants submitted to the trial court a form of judgment for its signature and ap-pellees offered an amendment thereto. The amendment was approved by the trial court and judgment entered accordingly. Appellant brings the case here again expressly limiting the issue presented to the question of whether the judgment entered by the trial court pursuant to the mandate of this court issued on March 24, 1954, requiring specific performance of the contract as interpreted in the opinion, conformed therewith.

Interpretation of contract by Supreme Court:

1. It is a valid contract.

2. The contract provides that each user shall get an equal allotment of water.

“As we construe the contract, it contemplates delivery to Oregon users after depletion by transmission loss a stream of equal size as that delivered to Graham users before depletion but for one minute less length of time. Only by this method can the one-minute period be given the effect intended, that is, to compensate only for the transmission loss.”

3. The Oregon users shall bear transmission losses by reason of the length of the canal carrying their water. The water shall be applied to the land on the basis of six minutes per acre for Graham users and five minutes for Oregon users. This differential is intended as an equalizing provision because of the transmission loss the Oregon users must bear.

Appellants claim that the judgment is greatly at variance with the mandate of the supreme court and “attempts to change and/or modify the opinion and decision of the supreme court.”

For convenience we will undertake to parallel the court’s interpretation of the contract between the canal companies with the judgment of the trial court involved in this appeal.

Judgment of Trial Court Pursuant to Mandate of this Court:

1. It is a valid contract.

2. Both the old Oregon Canal landowners and the old Graham landowners are entitled to receive and shall receive water from the Graham Canal from an irrigation stream of equal size (or an equivalent amount of water) at the point where it is diverted from said canal to their respective lands.

3. The old Oregon Canal landowners shall receive the water from said stream for five minutes per acre while the lands of the old Graham Canal landowners shall receive the water from said stream for six minutes per acre.

As indicative of the intent of this court relating to the allotment and distribution of water to the landowners under the old canals the court said:

“* * * It seems clear that if each owner gets the same amount of water, and if the Oregon owners must consume a portion of theirs in transmission, they cannot require application to their lands of an equal irrigation stream for the same length of time as the owners [Graham Canal owners] who are not required to bear this transmission loss. There was some evidence indicating that in making delivery to Oregon, a stream of water depleted by transmission loss was allowed to run the five minutes per acre, whereas the same stream not so depleted was delivered to Graham for six minutes per acre. If such be the practice, of course, it would result in unequal distribution and would be a violation of the terms of the contract, but would not render it void. * * * ”

In the second opinion the court said with respect to the transmission loss:

“* * * This means all transmission loss of every kind or character whether from seepage, evaporation or time consumed in transmission, shall be borne by Oregon lands. The one-minute less time of run was to measure this aggregate loss.”

A careful analysis of the language used in the judgment of the trial court with our opinion fails to reveal to us a noncompliance with our decision or with the mandate of the court.

Judgment affirmed.

LA PRADE, C. J., and WINDES and STRUCKMEYER, Jr., JJ., concurring.