Chambers

The subject of this action is defendant’s alleged liability for damages due to its breach of the terms of a contract of lease made to plaintiffs. Upon trial judgment was entered in favor of plaintiffs, from which, and an order denying its motion for a new trial, defendant appeals.

The evidence tended to establish the following facts: Defendant was the owner of a large tract of land in Fresno County, which it leased for the growing of grain thereon, to plaintiffs, who agreed to pay defendant as rental therefor one-fifth of the crop grown thereon during the season of 1912. The land was located in an arid zone, by reason of which fact it was necessary in the growing of crops thereon to irrigate the same. The source of supply of water for such irrigation was two streams known as Silver Creek and Panoche Creek, having their sources in the mountains, and which as a rule during the rain and flood seasons afforded a supply of water, which, however, varied from year to year, depending upon the precipitation of moisture upon the watershed tributary to said creeks. In order to utilize the waters of the creeks for irrigating the land, it was necessary to construct a dam across the streams…