shares of capital stock in the Yakima Valley Canal Company's main canal."

As sustaining the contention that Berg I cannot maintain the action, the authorities cited by the defendant which most nearly approach the question will here be considered. They are Knowles v. Leggett, 7 Colo. App. 265, 43 Pac. 154; Barstow Irrig. Co. v. Cleghon, Tex. Civ. App. —, 93 S. W. 1023; First Nat. Bank v. Hastings, 7 Colo. App. 129, 42 Pac. 691; Oligarchy Ditch Co. v. Farm Invest. Co. 40 Colo. 291, 88 Pac. 443; 3 Farnham, Waters, p. 2001; George v. Robison, 23 Utah, 79, 63 Pac. 819.

For what purpose was this provision placed in the lease? Steward desired the land leased planted in apple trees. Berg agreed to plant the trees, tend, irrigate, and care for the same during the period covered by the lease. Berg had the right, for his own purposes, of planting the entire tract to nursery stock, except that he should not encroach upon the apple trees closer than 3 feet. The use of the water upon the land was absolutely essential to any prac- In both the Knowles and Barstow Cases, tical attempt to carry out the provisions of the courts were considering leases where the lease. Without the water the purpose the owner of land had undertaken to furcould not be accomplished. While the lan-nish the tenant with a certain amount of guage used is not as specific as it could water. In neither case was it attempted in have been, it is yet quite sufficient to make the intention of the parties evident. The lease transferred to Berg the right to use the water as therein specified. The lease, for the period of time covered by it, operated as an assignment of the water right, as therein provided. In 3 Kinney on Irrigation, 2d ed. § 1484, it is said: "So, again, where a tract of land is conveyed, 'with the water right appurtenant thereto,' or a similar expression used in the deed, and the shares of stock representing the water right were not assigned to the purchaser, such a conveyance must be deemed in law an assignment, and the purchaser can compel a transfer of the stock and delivery to him of all water which was actually appurtenant to the land at the time of the transfer."

The water, as appurtenant to the land, having passed to Berg by virtue of the lease, established his privity, and, as a result, his right to maintain the action. In Booth v. Chapman, 59 Cal. 149, the defendant had agreed to sell to the plaintiff 20 acres of land with the water right appurtenant. The water right had been purchased by Chapman from an incorporated irrigation ditch company. The plaintiff, not receiving the amount of water which he claimed he was entitled to, brought an action against his vendor. The court there held that the action could not be maintained, but should have been brought against the corporation which controlled the water. It was said: "The contract was delivered to the plaintiff, and by virtue of it he took and still retains possession of the land, and, as we construe the contract, he became thereby invested with the water right appurtenant to the land. If so, he must look to the corporation which controls the water for the pro rata share belonging to said lot. It does not anywhere appear in the record that the defendant ever agreed to deliver any water to the plaintiff; and the court did not so find."

the lease to transfer the water right to the lessee. There is an obvious distinction between a contract whereby the landlord undertakes to furnish water to his tenant, and a contract whereby he attempts to transfer the right to the water itself to the tenant, as in the present case.

In the First Nat. Bank and Oligarchy Ditch Co. Cases there will be found language sustaining the defendant's contention. But in neither case was it necessary, in deciding the cause then before the court, to pass upon the question. In the Bank Case there stood, in the name of one Dickson, stock upon the books of the ditch company. The bank brought suit and attached the stock. Prior to this time the land on which the water represented by the stock was used had been sold and transferred by Dickson to a third person. Construing a statute then in force in the state of Colorado, it was held that an attaching creditor was not required to look beyond the books of the corporation to determine who owned the stock. In the Oligarchy Ditch Co. Case there were two corporations, one known as Oligarchy Ditch Company, which was the owner of a ditch with an appropriation of water attached thereto; the other was the Oligarchy Extension Ditch Company. The latter corporation owned no water right and was organized solely as a conduit company. The stock in the extension company did not represent independent water rights, but only the right to carry water obtained from the Oligarchy Ditch Company. It was held that a deed conveying the land, together with all the rights to use water for irrigating the premises, did not include stock in the extension company. This company owning no water right, but being only a carrying company, it is plain that the right to have water carried, which the stock represented, would not pass as appurtenant to the land. There would seem to be a distinction between stock in a ditch company which represented the

By

right to the water which had been appro- | dispute between them and him as to the priated and owned by the company, and amount of water to which he was entitled. stock in a corporation which owned no Had the officers of the company refused to water rights, and only carried water for its furnish him water until the stock had been members which they owned, evidenced by transferred upon the books of the company, certificates of stock in another corporation. a different question would be presented, Farnham on Waters, supra, states the upon which we now express no opinion. doctrine broadly that water represented by II. It is argued that a corporation orshares of stock cannot be said to be appur-ganized for the purpose of furnishing tenant to land. In support of this state- water to its stockholders is not liable even ment the case of George v. Robison, supra, to the stockholders on the ground of negonly is cited. An examination of that case ligence, and therefore it would not be liable will disclose that it does not support the at the suit of a tenant. It must be admitdeclaration of the text writer. There the ted that, if the corporation would not be question arose between the vendor and liable to its stockholders, a tenant of a the vendee of land. The vendee claimed the stockholder would stand in no more advanright to water as appurtenant under the tageous relation. Little space need be decovenant of warranty. Nowhere in the deed voted to the discussion of this question. was there any express reference to water | One of the purposes of the corporation set rights or water for irrigation or other pur- out in its articles was "to construct, mainposes. It was held that the right to the tain, and operate a canal to carry water water did not pass under the warranty. for irrigation and domestic purposes Had the right to the water been expressly to lands owned by its stockholders." mentioned or referred to in the deed, as it the by-laws it was provided that one of the was in the Berg lease, the court there recog- purposes for which the annual water rental nized that the rule would have been differ- was charged was to meet the maintenance ent, when it said: "From an examination and operation of the canal. The rule is of the evidence, the conclusion is irre- that, where a corporation is organized for sistible that the water rights in question the purpose of supplying water to its stockwere treated by the owners as personal holders, it is its duty to exercise reasonable property, constituted no part of the realty, care in maintaining the ditch in proper and, not being expressly mentioned or re- repair and to see that each stockholder referred to in the deed, were not conveyed ceives his proportionate share of the water. with the land, and that there is no proof Failing in this duty, the corporation is that warranted the court in finding that guilty of negligence, and may be compelled the water was appurtenant to the land, or to respond in damages at the suit of a that the water rights were included in the stockholder. O'Connor v. North Truckee warranty." Ditch Co. 17 Nev. 245, 30 Pac. 882; Rocky Ford Canal R. L. Loan & T. Co. v. Simpson, 5 Colo. App. 30, 36 Pac. 638. In the O'Connor Case, speaking upon this question, it was said: "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."

But even if it were conceded that the authorities just received do support the defendant's contention, we yet think the rule stated by Wiel, supra, is founded upon the better reason, and in its practical operations would be more just and equitable. To cause arid lands to become valuable for agricultural purposes, water is absolutely essential. The doctrine which makes it a question of fact whether the water right is appurtenant to the land, and whether it passes by a lease or other conveyance, seems to us sound.

Some claim is made that the corporation cannot be held liable because the stock still stood upon its books in the name of Preble. But this objection is not well founded. Prior to the time of the lease from Steward to Berg, the company had recognized the right of Steward in furnishing him water which was represented by the certificates. As to Berg, the officers and representatives of the corporation at no time refused to furnish him water because the stock had not been transferred upon the books of the corporation. There was no

III. It is next claimed that the evidence does not show negligence. The trial court found that the defendant was chargeable with negligence in two respects: First, that it failed to properly care for its canal during the fall of 1909 and the following winter and spring; that this negligence consisted in omitting to clean the canal so

that it would carry the quantity of water, that it was intended to carry; and that, by reason of this negligence, the plaintiff did not receive the water as early in the spring as it was needed, and as it was the duty of the defendant to furnish it; and, second, that the defendant did not supply the plaintiff with his proportionate share of the water that came down the ditch, but permitted other stockholders occupying lands further up the ditch, to take a greater portion of the water than they were entitled to; that by reason of this negligence the plaintiff lost a large portion of his nursery stock.

The trial judge filed in the case a written opinion. Speaking on the question of negligence he therein said: "The testimony of the officers in charge of the company during the spring of 1910 shows a clear case of negligence of a very pronounced kind. Very little effort was made to clean out any part of the ditch during the fall of 1909 after the time when it had a right to shut off the water for the purpose of cleaning out and making repairs. No repair work seems to have been done during the winter. It was all put off until the spring, and then the directors seem to have taken their time about everything. They turned the water on when it suited their pleasure, and shut it off to make repairs which might have been made before, showing an utter disregard for the rights of the patrons of the company. No shortage of water is claimed;. no serious breaks in the ditch, causing unavoidable delays; in fact, no substantial reason is shown why water should not have been delivered by the first of April, and delivered with reasonable continuity throughout the entire season sufficient to have prevented the loss sustained by the plaintiff."

The views of the trial judge, as expressed in the findings of fact and in the written opinion, are abundantly sustained by the evidence. It would unnecessarily prolong this opinion and serve no useful purpose to review the testimony upon this question. IV. The defendant in its brief proclaims vigorously against the amount of the judg ment. But this invective overlooks the evidence in the record. The plaintiff's evidence shows the value of the nursery stock in its condition at the time of its loss by reason of the failure to receive water. The defendant offered no directly controverting evidence. The proper measure of damages for the loss of a growing crop is the value of the crop at the time of the loss. This value may be arrived at either by evidence showing the reasonable value of the crop upon the land at the time, or the market value at the time of maturity, less the cost

of tilling, harvesting, 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.

The defendant offered evidence tending to show the inadaptability of the land for the purpose of producing nursery stock. The trial court, after the conclusion of the trial, as already stated, viewed the land. The plaintiff is prosecuting a cross appeal, claiming that the court erred in not making the award of damages sufficiently large. It is true that the evidence in the record would have sustained a larger verdict had the cause been tried to a jury and such a verdict returned. This, however, would not be a reason for our disturbing the judgment of the trial court.

Both parties having appealed, and neither having prevailed, no costs will be allowed in this court.

The judgment will be affirmed.

Ellis, Gose, Morris, and Parker, JJ.,

concur.

Chadwick, J., dissenting:

I dissent from the holding of the majority. Lack of time, owing to the change to be made in the personnel of this court within the next few days, prevents me from elaborating my views or going into the authorities. It will be enough to say that this action is brought against a mutual ditch company not organized for profits, of which Steward was a member. Upon the theory of the majority, he is as guilty of negligence as any other member of the company, and could not maintain an action in his own behalf. Berg stands in his shoes and can claim no greater right against the company than Steward could claim. Furthermore, a mutual ditch company should not be held to answer for the torts of one or more of its members. To do so would charge the innocent as well as the guilty, and put upon the innocent the burden of keeping a private contract made by one of the co-owners, and in which they had no interest whatever.

In consultation I asked the majority to tell me, or to state in the opinion, how the judgment in this case could be executed. The question was not answered, nor has it been answered in the opinion. The answer to that question furnishes the key to the whole superstructure of this case. As it now stands, plaintiff has a judgment which, in my opinion, is a paper judgment which cannot be enforced by taking the property or money of the unoffending members. They owed Berg no contract duty and no implied duty, and the water, which they had bought and paid for, is as essential

In Gilfallan v. Gilfallan, Cal. 141 Pac. 623, it was held that one who had contracted for the purchase of stock in an oil Equity will compel the specific perform- company was entitled to have specific perance of a contract for the transfer of stock formance on the part of the seller upon and bonds when they have a peculiar value showing that the corporation had no propto the party demanding the transfer. Lath-erty except 40 acres of land upon which

Messrs. Carter & Sheets and B. B. Jarvis, for appellee:

Plaintiff was not entitled to specific performance of the contract.

Hissan v. Parrish, 41 W. Va. 686, 56 Am. St. Rep. 892, 24 S. E. 600; Hogg v. McGuffin, 67 W. Va. 456, 31 L.R.A. (N.S.) 491, 68 S. E. 41; 26 Am. & Eng. Enc. Law, 2d ed. 122; Taylor, Corp. 790; Watkins v. Robertson, 105 Va. 269, 5 L.R.A. (N.S.) 1194, 115 Am. St. Rep. 880, 54 S. E. 33; Donnally v. Parker, 5 W. Va. 301; Grizzle v. Sutherland, 88 Va. 584, 14 S. E. 332; Gibbon v. Jameson, 5 Call (Va.) 294; McCully v. McLean, 48 W. Va. 625, 37 S. E. 559.

v. Leavitt, 35 W. Va. 194, 12 L.R.A. 776, 13 | 667, 101 Pac. 568; Southern Exp. Co. v. S. E. 67; Sherman v. Herr, 220 Pa. 420, 69 Western North Carolina R. Co. 99 U. S. Atl. 899; Butler v. Wright, 186 N. Y. 259, 191, 200, 25 L. ed. 319, 321; Wood v. 78 N. E. 1002; Baumhoff v. St. Louis & K. Kansas City Home Teleph. Co. 223 Mo. 537, R. Co. 205 Mo. 248, 120 Am. St. Rep. 745, 123 S. W. 6; Nease v. Ætna Ins. Co. 32 W. 104 S. W. 5; Jennings v. Southern Carbon Va. 283, 9 S. E. 233; Carney v. Barnes, 56 Co. - W. Va., 80 S. E. 368; Hall v. Phil- W. Va. 581, 49 S. E. 423. adelphia Co. 72 W. Va. 573, 78 S. E. 755; Tucker v. Farmers' Mut. Fire Asso. 71 W. Va. 690, 77 S. E. 279; Safford v. Barber, 74 N. J. Eq. 352, 70 Atl. 371; Wright v. Bell, 5 Price, 325; Frue v. Houghton, 6 Colo. 318; Omaha Lumber Co. v. Co-Operative Invest. Co. 55 Colo. 271, 133 Pac. 1112; McCullough v. Sutherland, 153 Fed. 418; Henry L. Doherty & Co. v. Rice, 186 Fed. 204; Turley v. Thomas, 31 Nev. 181, 135 Am. St. Rep. 667, 101 Pac. 568; Altoona Electrical Engineering & Supply Co. v. Kittanning & F. C. Street R. Co. 126 Fed. 559; Beheret v. Myers, 240 Mo. 58, 144 S. W. 824; Orange & A. R. Co. v. Fulvey, 17 Gratt. 366; Schmidt v. Pritchard, 135 Iowa, 240, 112 N. W. 801; Rau v. Seidenberg, 53 Misc. 386, 104 N. Y. Supp. 798; Dennison v. Keasby, 200 Mo. 408, 98 S. W. 546; Turley v. Thomas, 31 Nev. 181, 135 Am. St. Rep. oil had not been discovered, and the value, was speculative, so that the stock had no market value, but its value could be ascertained only on the discovery of oil in the land and that adjacent thereto, and that the stock was owned by but a few persons, and none of it was for sale.

Williams, J., delivered the opinion of the court:

Plaintiff filed his bill praying to have specific performance of an alleged contract to an action to enforce a trust as to personal property, citing Johnson v. Brooks, 93 N. Y. 337; Cowles v. Whitman, 10 Conn. 121, 25 Am. Dec. 60; Kimball v. Morton, 5 N. J. Eq. 26, 43 Am. Dec. 621; and Krohn v. Williamson, 62 Fed. 869, affirmed in 13 C. C. A. 668, 31 U. S. App. 325, 66 Fed. But specific performance of a contract 655, which are set out in the note in 50 for the transfer of corporate stock was de- L.R.A. 505, and quoting with approval from nied, in Eckley v. Daniel, 193 Fed. 279, the opinion of Judge Taft in 62 Fed. 869, upon the ground that the bill failed to show to the effect that "the court, as a court of want of an adequate remedy at law, where equity, acquired jurisdiction of the action, it was not averred that the stock could not not because damages at law would be inbe purchased in the market, or that its adequate, but because it is an action to enpecuniary value was not readily ascertain-force a trust, and, having jurisdiction on able, or that it had a peculiar value to the complainant.

-trust involved.

Supplementing notes in 50 L.R.A. 505, and 31 L.R.A. (Ñ.S.) 495.

this ground, may give such full relief as the nature of the case requires."

-mutuality of remedy.

Supplementing notes in 50 L.R.A. 506, and 31 L.R.A. (Ñ.S.) 496.

One who subscribed in his name for corporate stock and bonds, on behalf of an- Equity will specifically enforce a contract other who paid the consideration thereof, made by a corporation to purchase its stock became a trustee for such other person upon from a shareholder in consideration that the issuance of such stock and bonds, and the latter refrain from opposing the measmay be obliged to transfer them to the ures proposed by the other shareholders and beneficial owner by a court of equity, with- that he withdraw from the corporation, out the necessity of a showing that the rem- where it appeared that, in fulfilment of the edy at law is inadequate. Bacon v. Grosse, contract, he withdrew from participation in 165 Cal. 481, 132 Pac. 1027. The court the management of the affairs of the corsaid that "undoubtedly it is the general poration and allowed a policy which he oprule that equity will not compel the deliv-posed to be pursued, and it also appeared ery of specific personal property wrongfully that the stock of the corporation could not withheld, nor enforce the specific perform- be procured on the market and had no marance of a contract to sell chattels, unless it is shown that money damages for the breach of the obligation would not afford adequate relief," but that the rule is not applicable

ket price. Cole v. Cole Realty Co. 169 Mich. 347, 135 N. W. 329. The court pointed out that under the facts the defendant corporation would have been entitled to specific per