Rio Mimbres Irr. Co. v. Ervein

Citations

• 23 N.M. 190
• 167 P. 723

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Appellant contracted to construct dams and reservoirs to irrigate 25,000 acres of state lands, “or so much thereof, or as much more, as there may be water to irrigate, the amount to be determined by the measurements and estimates and by the territorial engineer.” In- the contract it was provided that certain lands therein described, amounting to over 14,000 acres, might be fir'st supplied, and thereafter that only territorial lands should be supplied. The 14,000 acres of land mentioned were held in private owership and had prior water rights upon the supply to those of the territory. Appellant gave bond in the sum of $25,000 to secure the building of the reservoir. The state engineer had ascertained and reported that there was a total water supply for only 9,000 acres of land. It is held that under these circumstances there was no obligation upon the part of the appellant to build a reservoir, and the judgment forfeiting the bond and awarding $25,000 damages for breach ther'eof against appellant was erroneaus. P. 196</p> <p>2. Appellant had a contract with the state land commissioner to construct wells to irrigate certain lands, which wells were constructed. It brought suit for specific performance of tbe contract for tbe sale of the lands by the land commissioner to such purchasers' as it had and should produce. The court awarded the relief prayed for for about 9,000 acres of land. Counsel for appellant asked a finding that appellant was entitled to be awarded an allotment of about 5,000 acres, much less than was actually awarded, and failed to make claim that appellant had a right to more, land than was awarded, and, in fact, admits in his brief her'e that the object of appellant’s action had been substantially accomplished. Under such circumstances appellant cannot be heard to complain of the court’s action in failing to award more land to appellant. P. 197</p>