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disclaims and disavows purpose and intent | needs the same kind of assistance from

to make any improper use of any information that may be obtained.

Both sides base the right to relief on the state of the pleadings. The return admits the right of inspection, denying only right to the assistance of an agent or attorney, wherefore the relator says the writ must issue if the law accords such right of assistance. On the other hand, it is said admission of the improper motive or purpose arises from lack of a replication to the return, wherefore the writ must be denied. Replying to this contention, the relator, not denying the sufficiency of impropriety of motive as an objection to the demand for inspection, claims the charge

specialists in law, accounting, and mechanical and scientific matters, in the exercise of this right, as are requisite to an efficient investigation pertaining to his individual business, and he is clearly entitled to whatever he needs to make his investigation full, complete, and intelligent.

Perceiving no error in the judgment, we affirm it.

WASHINGTON SUPREME COURT. (In Banc.)

WILLIAM BERG

V.

made in the return is not sufficiently YAKIMA VALLEY CANAL COMPANY. pleaded, because of its generality and meagerness of inculpating facts.

That the relator may suspect right in himself of a cause of action against the corporation or some of its agents, and may find revelation thereof in the records or

(Wash. - 145 Pac. 619.)

irrigation company

-

privity

Water
of lessee right to maintain action.
1. One leasing land under a ditch con-
structed by a mutual irrigation ditch com-
pany, from a holder of shares in the com-
pany, by an instrument providing that he
will accept as full water right for said land
a definite fraction of the water right held
by the lessor, is in such privity with the
ditch company as to enable him to maintain
an action against it for negligent failure
to maintain the ditch, in consequence of
which he is deprived of the water to which
he is entitled, to his injury.
Irrigation ditch company

transfer stock
for negligence.

failure to effect on liability

documents inspection whereof is sought, is not inconsistent with his right of inspection, because it does not relieve him from duty as a director, nor excuse nonperformance thereof. As such, he is a trustee of the property and interests of the corporation and entitled to full and complete information as to its affairs, to the end that he may be able properly to execute his trust. An interest hostile to the corporation does not bar a director's right of inspection. People ex rel. Leach v. Central Fish Co. 117 App. Div. 77, 101 N. Y. Supp. 2. A mutual irrigation ditch company 1108. cannot defeat an action for negligent failThe charge of purpose to obtain informa-ure to deliver water to one in possession tion for disclosure to rivals or competitors in the business in which the company is engaged is entirely too general and indefinite. It is founded upon mere information and belief, without a single specification of fact. No interest in any rival concern is charged or shown, nor is any such concern specified, named, or suggested. The name of no alleged informant is given or indicated. A legal right ought no more to be withheld, upon such an allegation, than property should be seized under an attachinent issued upon an indefinite and general charge of fraud, unless authorized by a statute.

It remains only to inquire whether, in the exercise of his right of inspection, a director is entitled to the assistance of an agent or attorney, having no adverse interests or connections, rendering his employment therein improper. An affirmative answer is given by the authorities. People ex rel. McInnes v. Columbia Paper Bag Co. 103 App. Div. 208, 92 N. Y. Supp. 1084. Reason accords with authority. A director

of land under the ditch, because the shares of stock representing the water to be used Note. - Right of stockholder in mutual

irrigation company to maintain action against the company for negligent failure to furnish water.

Research has disclosed little authority on the question indicated in the title to this note." There are several cases in which stockholders of mutual irrigation ditch companies have successfully prosecuted actions against the company for failure to supply water, but their right to maintain the actions does not seem to have been seriously questioned.

In O'Connor v. North Truckee Ditch Co. 17 Nev. 245, 30 Pac. 882, cited in BERG V. YAKIMA VALLEY CANAL CO., a water company organized for the purpose of owning and keeping in repair an irrigation ditch, and for controlling and dividing the water therein among the stockholders according to the amount of their stock, was held liable for damages at the suit of a stockholder for failure properly to control and divide the water, whereby the plaintiff was deprived of the water to which he was entitled. The

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Damages injury to crops.

5. The damages to be allowed for injury to a crop by failure to furnish water from an irrigation ditch is the value of the crop at the time of the injury, to be determined by its value on the land at that time, or its value at maturity less the cost of perfecting and marketing it.

Appeal evidence to justify disturbing judgment.

6. That the evidence would have warranted a larger award of damages than was allowed by the trial court is no reason for the appellate court disturbing the judgment. (Crow, Ch. J., and Chadwick, Fullerton, and Mount, JJ., dissent.)

(January 9, 1915.)

wrongful diversion of water from an upper to a lower reservoir, from which the plaintiff's land could not be irrigated. Regarding the duty of the company to the stockholder, the court said that "the defendant company, having been organized for the purpose of supplying water to its stockholders by means of a ditch and reservoir system, assumed and was charged by law with the duty of exercising reasonable care and diligence in procuring and storing the water, keeping its storage reservoirs in repair and condition to retain the same, and making ratable distribution thereof; and, if plaintiff's land was so situated that it could be irrigated from certain reservoirs only, it was its duty, if practicable, by the exercise of reasonable care and diligence, and without prejudice to the other stockholders, to retain a sufficient amount of water in such reservoirs to irrigate those lands;" that it was the failure to perform this duty, and the injury resulting to plaintiff, that was charged in the complaint.

plaintiff and others in an association own-789, damages were recovered by a stocking an irrigating ditch had deeded their holder in a mutual ditch company for rights in the ditch to the company in consideration of stock, and the court said that "the stated objects of the corporation, as expressed in the certificate and the stipulations in the deed, clearly define the duties imposed upon the corporation. By the terms and conditions thereof the corporation is bound to keep the main ditch supplied with water, and to regulate and divide its use among the several stockholders in accordance with their respective interests; and it must necessarily follow that for any neglect or failure to properly discharge its duty in this respect it would be liable to the stockholder who is injured thereby to the extent of the damages suffered by him." The contention was overruled in O'Connor v. North Truckee Ditch Co. supra, that, as the testimony relating to the negligence of the company showed that some of the stockholders above the plaintiff's land had placed dams in the ditch, and diverted more water than they were entitled to, and that but for such acts the plaintiff would not have been injured, the injuries complained of were occasioned by the wrongful acts of other stockholders, and that the corporation was not guilty of negligence, and not liable for damages.

And in Rocky Ford Canal R. L. Loan & T. Co. v. Simpson, 5 Colo. App. 30, 36 Pac. 638, an irrigation company organized for the purpose of supplying water to its stockholders exclusively was held liable to a stockholder for breach of contract for failure to deliver her proportionate share of the water. In upholding the verdict for the plaintiff, the court said that the agreement of the company being to furnish water in proportion to the amount of stock, it devolved upon it, under the facts of the case, to explain its failure so to do, and that the sufficiency of the explanation was for the jury; that the duty assumed by the company was to use reasonable care and diligence in conveying the water, in keeping the means of conveyance in repair, and making a ratable distribution. So, in Mountain Supply Ditch Co. v. Lindekugel, 24 Colo. App. 100, 131 Pac.

Seeley v. Huntington Canal & Agri. Asso. 27 Utah, 179, 75 Pac. 367, was an action by a stockholder against a water company for damages for failure to deliver water to which the plaintiff claimed he was entitled, the only question considered, however, being the legality of an assessment which the plaintiff had failed to pay, such failure being set up as a defense to the action.

Among possibly other cases where stockholders have sought to enjoin irrigation companies from discrimination in the delivery of water, or from a wrongful diversion thereof, see Richey v. East Redlands Water Co. 141 Cal. 221, 74 Pac. 754, and McDermont v. Anaheim Union Water Co. 124 Cal. 112, 56 Pac. 779.

As to mandamus to enforce the right of a stockholder of a water company to water, see note to Miller v. Imperial Water Co. 24 L.R.A. (N.S.) 372.

It is to be regretted in view of the novelty and importance of the suggestions in the dissenting opinion in the BERG CASE, that the majority did not make a more specific reply to them. R. E. H.

ROSS APPEALS from a judgment of the Superior Court for Yakima County in plaintiff's favor in an action brought to recover damages alleged to have been caused by defendant's negligent failure properly to maintain and keep in repair an irrigation ditch; defendant appealing from a judgment in plaintiff's favor, and plaintiff appealing from the inadequacy of the amount allowed as damages. Affirmed.

The facts are stated in the opinion. Messrs. Thomas H. Wilson and Bogle, Graves, Merritt, & Bogle, for plaintiff: It is the plain duty of the corporation, in the exercise of its corporate functions, to furnish water to the land, and it is liable for failure to perform that duty.

Miller v. Imperial Water Co. 156 Cal. 27, 24 L.R.A. (N.S.) 372, 103 Pac. 227; 3 Kinney, Irrigation, 2d ed. § 1486; Rocky Ford Canal R. L. Loan & T. Co. v. Simpson, 5 Colo. App. 30, 36 Pac. 638; O'Connor v. North Truckee Ditch Co. 17 Nev. 245, 30 Pac. 882; State v. Twin Falls Canal Co. 21 Idaho, 410, 121 Pac. 1039; 10 Cyc. 965; 4 Thomp. Neg. 2d ed. § 4637.

The water, or right to the use of the water, became an appurtenance (not inseparable) to the land, and so remains until severance by the act of the shareholder in the manner fixed by the articles and by-laws of the corporation, and as regulated by law.

2 Wiel, Water Rights, 2d ed. §§ 1266, 1269; 3 Kinney, Irrigation, 2d ed. §§ 1483, 1484; 2 Kinney, Irrigation, 2d ed. § 1011; Miller v. Imperial Water Co. 156 Cal. 27, 103 Pac. 227.

While the water right remains appurtenant, a lease of the land and water for a term creates the relation of landlord and tenant in regard to the same. The lessee succeeds to and is entitled to all the rights and privileges of the lessor, through privity of estate and contract touching the subject-matter, and may maintain an action to redress injuries to such rights.

ing water places the burden upon the water company to explain the failure.

Rocky Ford Canal R. Loan & T. Co. v. Simpson, 5 Colo. App. 30, 36 Pac. 638; Dalton v. Selah Water Users' Asso. 67 Wash. 589, 122 Pac. 4.

The measure of damages in the case of loss of growing crops or of fruit trees is the market value over the cost of producing and marketing.

Shotwell v. Dodge, 8 Wash. 337, 36 Pac. 254; Fuhrman v. Interior Warehouse Co. 64 Wash. 159, 37 L.R.A. (N.S.) 89, 116 Pac. 666; Raywood Rice, Canal & Mill. Co. v. Erp, 105 Tex. 161, 146 S. W. 155; International & G. N. R. Co. v. Pape, 73 Tex. 501, 11 S. W. 526; Lommeland v. St. Paul, M. & M. R. Co. 35 Minn. 412, 29 N. W. 119.

The value of the trees as they stood having been shown, and the trees being a total loss, no deductions are to be made.

Fuhrman v. Interior Warehouse Co. 64 Wash. 163, 37 L.R.A. (N.S.) 89, 116 Pac. 666; Hanes v. Idaho Irrig. Co. 21 Idaho, 512, 122 Pac. 868.

Mr. A. L. Agatin, with Messrs. Englehart & Rigg, for defendant:

The true measure of damages for total destruction of growing or standing crop is the value of the crop in the condition in which it was at the time and place of destruction.

13 Cyc. 153; Teller v. Bay & River Dredging Co. 12 L.R.A. (N.S.) 267, note.

The obligation and duty arising out of contract are due only to those with whom it is made; no action can be brought by one not a party to the contract.

9 Cyc. 373; Winterbottom v. Wright, 10 Mees. & W. 109, 11 L. J. Exch. N. S. 415; Marvin Safe Co. v. Ward, 46 N. J. L. 19; Lovejoy v. Bessemer Waterworks Co. 146 Ala. 374, 6 L.R.A. (N.S.) 429, 41 So. 76, 9 Ann. Cas. 1068, 20 Am. Neg. Rep. 1; Britton v. Green Bay & Ft. H. Waterworks Co. 81 Wis. 48, 29 Am. St. Rep. 856, 51 N. W. 84; House v. Houston Waterworks Co. 88 Tex. 233, 28 L.R.A. 532, 31 S. W. 179; Hone v. Presque Isle Water Co. 104 Me. 217, 21 L.R.A. (N.S.) 1021, 71 Atl. 769; Lutz v. Tahlequah Water Co. 29 Okla. 171, 36 L.R.A. (N.S.) 568, 118 Pac. 128; Howsmon v. Trenton Water Co. 119 Mo. 304, 23 L.R.A. 146, 41 Am. St. Rep. 654, 339, 31 L.R.A. 862, 52 Am. St. Rep. 88, 42 24 S. W. 784; Buckley v. Gray, 110 Cal. Pac. 900; National Sav. Bank v. Ward, 100 U. S. 195, 25 L. ed. 621; Roddy v. Missouri P. R. Co. 104 Mo. 234, 12 L.R.A. 746, 24 Am. St. Rep. 333, 15 S. W. 1112; Hanes v. Idaho Irrig. Co. 21 Idaho, 512, Pittsfield Cottonwear Mfg. Co. v. Pittsfield 122 Pac. 859; O'Connor v. North Truckee Shoe Co. 71 N. H. 522, 60 L.R.A. 116, 53 Ditch Co. 17 Nev. 245, 30 Pac. 885. Atl. 807, 13 Am. Neg. Rep. 363; Nickerson A failure to perform the duty of furnish-v. Bridgeport Hydraulic Co. 46 Conn. 24,

2 Kinney, Irrigation, 2d ed. § 1025; Crook v. Hewitt, 4 Wash. 749, 31 Pac. 28; Wood, Land. & T. §§ 212, 213; Black's Law Dict. Privity, p. 942; 2 Bouvier's Law Dict. Privity, p. 465; Booth v. Chapman, 59 Cal. 149; Pallett v. Murphy, 131 Cal. 192, 63 Pac. 366; Equitable Securities Co. v. Montrose & D. Canal Co. 20 Colo. App. 465, 79

Pac. 747.

The evidence shows that defendant failed to furnish water in violation of its duty, and that plaintiff was damaged thereby.

33 Am. Rep. 1; 3 Jaggard, Torts, § 260, | ers of the corporate stock. By the amended p. 904; Ferris v. Carson Water Co. 16 Nev. 44, 40 Am. Rep. 485.

The action cannot be maintained upon the theory that the obligation to supply water by the canal company to Steward is for the benefit of plaintiff, although he is not a party to the contract.

articles of incorporation, the capital stock of the corporation was $4,200, divided into 4,200 shares of the par value of $1 per share. No dividends were to be paid upon this stock. The canal, after it was constructed, was to be maintained and kept in repair by assessments each year made upon the stockholders. The certificates of stock which were issued provided that the owner of the shares therein specified, in accordance with the articles of incorporation and the by-laws, was entitled for every share of stock to 14200 part of the volume of water carried by the canal, so long as the water should be used upon the land described upon the back of the certificate.

Buckley v. Gray, 110 Cal. 339, 31 L.R.A. 862, 52 Am. St. Rep. 88, 42 Pac. 900; Simson v. Brown, 68 N. Y. 355; Burton v. Larkin, 36 Kan. 246, 59 Am. Rep. 541, 13 Pac. 398; Greenwood v. Sheldon, 31 Minn. 254, 17 N. W. 478; Ferris v. Carson Water Co. 16 Nev. 44, 40 Am. Rep. 485; Second Nat. Bank v. Grand Lodge, F. A. M. 98 U. S. 123, 25 L. ed. 75; Britton v. Green Bay & Ft. H. Waterworks Co. 81 Wis. 48, On March 31, 1909, one William Steward 29 Am. St. Rep. 856, 51 N. W. 84; Styles became the owner, by purchase from E. B. v. F. R. Long Co. 70 N. J. L. 301, 57 Atl. Preble, of certain lands which were under 448; Beach, Contr. § 200; House v. Hous- the ditch. The certificates of stock which ton Waterworks Co. 88 Tex. 233, 28 L.R.A. entitled Preble to water to be used upon 532, 31 S. W. 179; Wright v. Terry, 23 this land were on this date assigned to Fla. 169, 2 So. 6. Steward, but were not transferred upon the The "water right" represented by stock | books of the corporation until February follows the stock, and is not an "appur-21, 1911. On the 27th day of November, tenance" to land in the sense of being capable of passing as an "appurtenance" with any lease or deed of the land.

First Nat. Bank v. Hastings, 7 Colo. App. 129, 42 Pac. 691; George v. Robison, 23 Utah, 79, 63 Pac. 819; 3 Farnham, Waters, p. 2001; 17 Am. & Eng. Enc. Law, 527; 40 Cyc. 833; Oligarchy Ditch Co. v. Farm Invest. Co. 40 Colo. 291, 88 Pac. 443; Oppenlander v. Left Hand Ditch Co. 18 Colo. 142, 31 Pac. 854,

1909, Steward leased for a period of two years 100 acres of the land above mentioned to William Berg, the plaintiff. This lease provided that Berg would plant the land leased in apple trees of specified varieties, and would cultivate and care for the same during the period covered by the lease, in a good and husband-like manner. During the time covered by the lease, Berg had the right to plant the entire tract to nursery stock, provided he should not plant any nursery stock or any other crops nearer

Main, J., delivered the opinion of the than 3 feet distant from the apple trees.

court:

The purpose of this action was to recover damages alleged to be due to the negligence of the defendant in failing to properly maintain and keep in repair an irrigation ditch. The cause was tried to the court sitting without a jury. Judgment was entered for the plaintiff in the sum of $18,500. The defendant appeals.

The facts are substantially as follows: The defendant, Yakima Valley Canal Company, is a corporation organized and existing under the laws of the state of Washington. The object for which this corporation was formed, as set out in its articles, was to construct, maintain, and operate a canal to carry water for irrigation and domestic purposes from the Naches river in the county of Yakima to the lands owned by its stockholders situated in that county, and in township 13, range 18, E. W. M. The water was to be furnished at cost to the owners of lands upon the line of the canal or lateral branches, who should share in the cost of construction, or become own

The lease also provided that Berg should
have the right to use a specified portion of
the water from the Yakima Valley Canal
Company, which was then owned by Stew-
ard and covered by the certificates which
had been assigned and delivered to him by
Preble. Berg was a nurseryman, and im-
mediately entered into possession of the
land for the purpose of engaging in the
nursery business somewhat extensively.
During the spring of the year 1910 he
planted approximately 70 acres of land in
nursery stock. For this purpose he em-
ployed about twenty-five men.
Berg claims
that the defendant company was negligent
in failing to properly maintain and take
care of the irrigation ditch during the pre-
vious fall and winter, and for that reason
he did not receive sufficient water during
the spring of 1910 to grow the nursery
stock which he had planted. By reason of
the shortage of water, Berg claims dam-
ages in the sum of $73,150.

At the conclusion of the trial the court, at the request of one party and with the

consent of the other, in company with a representative of each, examined the land. Other facts will be mentioned as they may become pertinent in connection with the consideration of the points urged for a reversal.

The questions to be determined are: First, the right of the plaintiff to maintain this action. Second, is the defendant company liable in damages for negligently failing to properly maintain and keep in repair the irrigation ditch? Third, does the evidence sustain the charge of negligence? And, fourth, the amount of the damages.

I. In order to reach the real question in the case without unnecessary preliminary discussion, it will be admitted, for the purposes of this opinion: (a) That the Yakima Valley Canal Company is what is known as a mutual ditch company (that is, that the company was formed for the purpose of supplying water to its stockholders only, and not to the public generally); (b) that the action must be founded either in tort or contract; (c) that the present action is not one sounding in tort; (d) that an action based upon a contract must be brought by one who is either a party or stands in a relation of privity; and (e) that Berg was not a party to the contract. If, therefore, the present action can be maintained by Berg, it is upon the ground of privity. Whether that relation existed between Berg and the canal company depends upon whether, when Berg took his lease, a right to the water passed to him as an appurtenance to the land. It will hardly be denied that, if the water right passed as an appurtenance to the land, this right to maintain the action is well founded.

In a mutual company the stock certificate represents the water right. A transfer or sale of the certificate may be made separate from the land for use on other land, and will transfer the water right. But where it has not been thus sold or transferred, the question whether the water right is appurtenant to the stockholder's land is generally a question of fact, as is also whether, on a sale or transfer of the land, the water right passes as an appurtenance. In 2 Wiel, Water Rights in the Western States, 3d ed. § 1269, speaking upon this question, the author states the rule as follows: "So long as the company remains purely a mutual one, the certificate of stock represents the water right. A transfer or sale of the certificate is governed by much the same rules as those elsewhere considered regarding transfers of water rights. Whether the water right is appurtenant to the stockholder's land is a question of fact in each case, as is also

whether, on a sale of the land, the water right passes as appurtenance. A sale of the certificate may be made separate from the land for use on other land, and will transfer the water right, where the change does not injure other existing water users by the new place of use (who alone, however, can raise the objection that they are injured); the transfer being complete when (and not until) entered on the books of the company. On the other hand, in the absence of any separate sale of the certificate or of any other evidence of any express intention to make a severance, a sale of the land on which the water is used will carry the water right and right to the certificate as an appurtenance."

In the present case the water right, as evidenced by the certificate, was appurtenant to the land.

The amended articles of incorporation specify that "each share of stock of this corporation shall constitute a water right for 1 acre of land, and shall, when duly issued and delivered, vest in the lawful owner thereof, his heirs and assigns, title to one forty-two hundredth (14200) part of the water at any time actually carried by said canal.

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The by-laws of the corporation adopted by the stockholders specify the form of the certificate. The certificate provides that the owner of each certificate of stock shall be entitled to "one forty-two hundredth part of the volume of water carried by the canal of said corporation for each share of stock represented by this certificate, so long as he shall use said water upon the land described in the certificate upon the back hereof, and no longer, provided, however, that no water can be taken from said canal by virtue of the ownership of said stock until the certificate upon the back hereof has been filled out, signed, and sealed by the secretary of this corporation."

The land formerly owned by Preble and transferred to Steward was described upon the back of the certificates as issued to Preble, and assigned and delivered to Steward at the time of the purchase of the land by him. Considering the respective provisions of the articles of incorporation, the by-laws, and the stock certificate, it is plain that it was the intention to make the water right represented by the stock appurtenant to the land.

But it is contended that, even if the water is appurtenant to the land, it did not pass to Berg under the terms of the lease, in which it was provided: "That he [Berg] will accept as the full water right for said land one half of the water right now owned and held by said first party [Steward], to wit, one half of one hundred

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