CHAMBERLAIN v. AMTER.

27 P. 87

1 Colo.App. 13

CHAMBERLAIN
v.
AMTER.

Court of Appeals of Colorado

June 23, 1891

Error
to superior court of Denver.

A.L.
Doud, for plaintiff in error.

Sullivan
& May, for defendant in error.

REED,
J.

This
suit was instituted by the plaintiff in error on October 7,
1887. It appears by the allegations in the [1 Colo.App. 14]
complaint that for some years prior to and on the 8th day of
February, 1887, the defendant in error was the owner of 80
acres of land situated under the line of the Northern
Colorado Irrigation Company's ditch, and that on the 23d
day of June, 1884, the defendant in error entered into a
contract with the corporation owning the ditch for water to
irrigate the land. By the terms of the contract defendant in
error was to pay to the corporation $1,400 for a right to buy
water for the land, and was to pay annually for the water
supply for irrigating purposes an indefinite sum, to be fixed
thereafter, varying from $1.50 to $4 an acre. The $1,400 for
the water-right was to be paid in different installments of
interest and principal at various times from the date of the
making of the contract to June, 1891. On the 8th day of
February, 1887, partial payments had been made for the
water-right, and it is alleged in order to perfect and secure
the title to it, further payments to the amount of about
$1,100 were necessary; and on that day the plaintiff in error
obtained an option on the property for a fixed time at the
price of $10,000, and to secure such option made a payment of
$500, and a memorandum or contract was entered into, as
follows: "Denver, February 8, 1887. In consideration of
one dollar ($1.00) to me in hand paid by H.B. Chamberlain,
the receipt whereof is hereby acknowledged, I hereby agree to
sell to him or his assigns, at any time prior to March 8th,
the following described property: The north half of
south-west quarter section twenty, (20,) township four (4)
south, range sixty-seven west, for the sum of ten thousand
dollars ($10,000.00,) payable as follows: $500.00 down,
$4,500.00 ($2,500.00 in sixty days and $2,000.00 in thirty
days,) and the balance of five thousand dollars ($5,000.00)
in two years, at eight (8) per cent. per annum. MARK
AMTER." On the 8th day of March following, plaintiff in
error concluded the purchase of the land for one Charles B.
Wood, [1 Colo.App. 15] who paid the whole consideration, and
to whom a deed for the same was made. It is not shown by the
testimony that at any time prior to the conveyance any
contract was made between the parties whereby the contract
[27 P. 88.]
for water of the defendant in error with the ditch company
was to be assigned, transferred, or sold to the plaintiff in
error, or was to pass with the land under the option. It was
shown by the testimony that the deed was accepted, and the
trade consummated without any assertion of claim on the part
of the plaintiff in error to have the water-right
transferred. It will be observed that there is nothing in the
written contract referring to the matter in controversy. The
land was sold by one Millington as agent of the owner. The
testimony in regard to the under standing of the parties with
reference to the water-right is very meager and
contradictory. Plaintiff in error testified that Millington,
the agent, "stated that the land had been cultivated the
year previous, and that it had the English ditch water-right,
which was included in the purchase price." This appears
to have been all that was said on the subject, and even this
was not embraced in the writing. It is very indefinite. It
does not show whether the contract, as it then stood, between
defendant and the ditch company, was to be transferred, or
whether it was to be secured, and final payments made by the
buyer or seller. Where nothing is said with regard to it,
under such circumstances, it is presumable that the future
payments are to be made by the purchaser, else there would
have been some contract or obligation on the part of the
seller to pay in future; or, if the understanding had been
that the seller should make the payments, it is to be
presumed the buyer would have investigated the matter, and
retained the amount from the purchase money. The strongest
construction the language of the agent can really bear is
that the land was susceptible of cultivation by the use of
water from the company's ditch, and that the [1 Colo.App.
16] right to the water for the land was secured, and such
right would go with the land. But this cannot be construed as
a promise to pay the money to perfect the purchase of such
right. The contention of counsel of plaintiff in error that
the water was appurtenant and went with the land, and,
consequently, there being a failure of title as to part, the
money could be recovered, cannot be sustained for two or
three very good reasons: First, there was no conveyance of
the right, and no covenant; second, if such had been the
case, plaintiff in error could not recover the money, as
neither land nor water was conveyed to him. It could, if
recoverable at all, be recoverable only at the suit of the
grantee. Wood having been the purchaser and grantee direct
from the defendant in error, and the paper given the
plaintiff in error having been but an option, he could
acquire no right individually to the water, separated from
the land, unless by showing that he had been damnified and
had been compelled to pay the money to make good Wood's
title, and therefore had a right to have it refunded. It is
not pretended that such was the fact. In any view I can take
of it, plaintiff failed to make a case which would warrant a
recovery. It follows that the judgment of nonsuit was right,
and should be affirmed.