RIVERSIDE TRUST CO., Limited, v. EAST RIVERSIDE WATER CO., 173 F. 241

GILBERT, Circuit Judge {after stating the facts as above). The allegations of the complaint must be construed, and the rights of the parties as to the subject-matter of the action must be determined, in the light of the contracts which were made between Gage and the respective parties of the second part thereto. The covenants upon the part of the parties of the second

part in the 13 contracts last referred to in the foregoing statement, standing by themselves, and unaffected by the other provisions of the instruments in which they are contained, might be said to be sufficiently broad and inclusive to sustain the plain-. tiff’s causes of action thereon. But, in determining their force and effect, we must not ignore the circumstances under which the contracts were entered into, and especially the subject of the grants' and the covenants on the part of the grantor.

Running all through these and all the contracts, and controlling the construction of the grantee’s covenants, is the fact that there is in each a conveyance by the grantor of a certain designated supply of water, and there is an acknowledgment by the grantee, indicated by his acceptance of the conveyance, that the water as stipulated therein had been actually delivered to him, and that such delivery and the conveyance are accepted by him in full satisfaction of all obligations of the grantor to him, his heirs and assigns.

This indicates that the grantor had covenanted to deliver continuously to the grantee the quantify of water so granted, and the covenants so made by the grantee to pay a proportionate share of the expenses must be deemed to be covenants to pay a share of the expenses of the delivery only of that which had been granted, the actual delivery of which the grantee had acknowledged, and not a covenant to contribute to the expenses of producing that which the grantor had granted.

This construction of the covenants of the grantees is even more dearly indicated in the other contracts and conveyances between Gage and the predecessors in interest of the defendant.

It was therein mutually agreed that Gage should construct a canal, for the purpose of irrigation, from a designated point or from any other point where he might obtain “a permanent and sufficient supply of water”; that the canal was to be supplied with water from the springs and water rights and from the flow of artesian wells bored and to be bored on certain described lands belonging to Gage; and that he was to deliver to the grantor in each case a specified quantity of water, measured at the •canal.

The consideration in each instance was to be paid upon the delivery of the water, and was to be a sum in gross in full payment for a perpetual supply thereof.

In brief, the terms of the contracts import that upon Gage rested the burden of producing the water and causing the same to flow upon the surface, thence to be turned into a canal and delivered continuously and permanently, and that upon the vendees rested the burden of continuously contributing to the expenses of maintaining the canal and the branches thereof, and whatever. other structure might be necessary to conduct to their lands 'the flow of water which was to be produced by Gage as a permanent supply from his springs and water rights and the flow of artesian wells bored or to be bored by him, and that they did not promise to contribute to the expense of boring other wells, or of supplying and operating pumps to develop new supplies of water, or to the expense of bringing such waters to the surface.

The sources of water referred to in the contracts were evidently, at the time when the contracts were made, •deemed sufficient to supply all the water which was to be delivered, and the installation of pumping plants was not in the contemplation of the contracting parties. The intervention of unusual droughts thereafter cannot be held to have imposed any additional obligation on the defendant, nor to have relieved the plaintiff from its obligation to supply the water which was to be furnished under the terms of the contracts. We think the demurrer was properly sustained.

It is contended that the court below erred in striking out a certain amendment to the complaint, which was inserted for the purpose of explaining the meaning of the parties to the contracts in the use of the terms “delivered at, the canal” and “measured at. the canal.” By the amendment it was alleged that these terms did not mean, and were not intended by the parties to mean, that the water .was to be delivered intb the canal free of all expense required to maintain the flow thereof, brit that the intention of the parties was that the water was to be delivered at the canal end of the lateral ditches or pipes, and that the purpose of the provision for the delivery at the canal was to relieve the ■owners of the canal of the expense of maintaining such laterals and that at all times the parties to the contracts and their successors in interest have interpreted and construed said contracts as so alleged, and have measured the water at the canal end of said laterals, and that the defendant and its predecessors in interest have paid their proportion of the expense incurred in maintaining the flow of water in said canal, including the cost of conveying it from the various wells near the head of the canal, and including'the cost of diverting the flow of the Santa Ana river and conducting the same into the canal.

We are .unable to see how the.matter so alleged could throw any light upon the question whether the defendant in this action should he adjudged to pay any part of the expense of purchasing, installing, maintaining, and operating pumps and pumping plants. In any view of it, it is but an attempt to plead legal conclusions, and there was no error in striking it from the complaint. The judgment is affirmed.