The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 362

                                
272 FEDERAL REPORTER

rights and contracts outside of said area and the corporate stock there-
for should be canceled and that the owner of such canceled entries and
stock be entitled to receive from the trust fund payment of all moneys
paid therefor including interest and damages, to be determined by the
court.
[1] When the District Court heard this case originally, the construc-
tion of these contracts between the state and the Construction Company
and the Construction Company and the settlers together with other evi-
dence was submitted to the court to determine the quantity of water per
acre that was to to be delivered to the settlers during the irrigation sea-
son. The court determined that these contracts contemplated a right
sufficient to enable the settlers to receive water at the rate of one-hun-
dredth of a second foot per acre continuously during the season of actu-
al irrigation, the amount of which was determined to be 24% acre feet,
measured at the points of delivery from the system into the consumers'
laterals. The court thereupon entered a decree that the Construction
Company should not sell rights in excess of such available supply. The
decree also restrained the Construction Company from making any ad-
ditional contracts for the sale of water rights and also from waiving the
right to forfeit any existing contract; and also restrained the Con-
struction Company, together with the other defendants, from collect-
ing or attempting to enforce payments upon such water right agree-
ments, including any overdue payments of installments on said agree-
ments, until such time as the holders thereof had been provided with
the water supply so contracted for, or given trustworthy assurance to
be approved by the court that such water would be provided. The
court refused to appoint a receiver for the system.
On appeal to this court, Judge Ross, speaking for the court, stated
the substance of the controversy as then presented in the following
language:
"The difficulties that have arisen grow out of the fact, discovered, unfortu-
nately, too late, that instead of the appropriation of the waters of the stream
amounting in fact to 1,500 cubic feet per second, the supply, as shown by the
record and according to the practical concession of the parties, was only
about one-third of that amount-wholly insufficient for the reclamation and
irrigation of the entire tract segregated by the Secretary of the Interior, and
also insufficient, it is claimed, for at least the proper irrigation of all of
the lands covered by contracts of sale issued by the construction company to
settlers."
The court held that the settlers were entitled under their contracts
to one-hundredth of a second foot of water per acre provided such
quantity could be beneficially applied, but were not entitled as a con-
tractual right to 2-% acre feet per acre as held by the District Court,
since that amount was merely determined in an advance estimate made
by the proposer of the plan as to the capacity of the system. In other
words, it was not an agreement on the part of the Construction Com-
pany that that amount of water would be delivered unconditionally to
each settler during the season, but the court did hold that the Carey
Act as amended required that an ample supply of water for the land
should be actually furnished as a condition precedent to the issuance
of thepatent and that whether or not such a supply was actually fur-