Lawrence v. Southard , 192 Wash. 287 ( 1937 )


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  • As indicated in the majority opinion, the decision of this case must turn upon the question of whether there is a perpetual water right appurtenant to the land the defendant agreed to convey,

    ". . . sufficient [in] amount of water to beneficially irrigate said land and to the same extent as has heretofore been used thereon for irrigation purposes."

    It is admitted that from 1920 to 1936, inclusive, there had been an average of 4.3 acre feet of water used on the land, and that that amount is necessary to "beneficially irrigate" it. If there is not such a quantity appurtenant to the land, plaintiff is entitled to rescind the contract and recover what he has paid on the purchase price. Babcock, Cornish Co. v. Urquhart,53 Wn. 168, 101 P. 713.

    May 10, 1905, the United States government withdrew the waters of the Yakima river for the purpose of impounding them and delivering them for irrigation of lands in the Yakima valley. It does not appear from the record that there were then any water rights appurtenant to the land — nor thereafter, until 1911. On August 1st of that year, Frank H. Sharkey, the then owner of the land, made an application to the interior department for

    ". . . 3 acre feet of water per annum per acre of irrigable land, . . . or so much thereof as shall constitute theproportionate share per acre from the water supply actuallyavailable for the lands under said project; Provided, That thesupply furnished shall *Page 306 be limited to the amount of water beneficially used on saidirrigable land."

    This application was granted.

    It seems to me that this application and grant plainly and unambiguously provide for a maximum water right of three acre feet. This view is tacitly admitted by the majority, for they hold that the vendor and his predecessors in interest have acquired a prescriptive right to the use of water in excess of three acre feet. If there be such a prescriptive right, it has never been adjudicated. And such right can not be effectively adjudicated in this action. For the prescriptive right must be established (if it can be, which I doubt) against the government of the United States, which is not a party here. At best, all that the vendor (defendant) is able to convey under his contract is the right to the use of three acre feet and a claimedprescriptive right to the use of water in excess of that amount. In other words, the defendant seeks to acquit himself of his covenant with respect to the water appurtenant to the land by passing along to the plaintiff a lawsuit against the United States.

    Since the defendant agreed to sell plaintiff an amount in excess of three acre feet, and since he can not perform his contract, plaintiff is entitled to rescind on the ground of substantial failure of consideration. Babcock, Cornish Co. v.Urquhart, supra.

    STEINERT, C.J., and MAIN, J., concur with BLAKE, J. *Page 307

Document Info

Docket Number: No. 26715. En Banc.

Citation Numbers: 73 P.2d 722, 192 Wash. 287

Judges: MILLARD, J.

Filed Date: 11/19/1937

Precedential Status: Precedential

Modified Date: 1/13/2023