Richter

The plaintiff recovered judgment for the sum of eight hundred dollars, with interest from April 16, 1892, and costs—the principal sum adjudged being the amount of the consideration paid by the plaintiff to the defendant on a contract of the date named which the defendant had failed to perform.

The defendant appeals from the judgment and from an order denying a new trial. The material facts, as disclosed by the pleadings and findings, are as follows: The contract in question was accompanied, or rather preceded, by a deed of the same date from the defendant to the plaintiff purporting—for the consideration of eight hundred dollars in hand paid—to convey to the plaintiff "a perpetual water right for a sufficient quantity of water to properly and fully irrigate [the land described in the deed]; said water to be taken and used from the water system belonging to the party of the first part on Red Rock creek in said county,” and the use of the water to be restricted to the land described.

By the contract—which was executed by both parties—the defendant agreed "to deliver in an open ditch, at the most, convenient point on the margin of the [land described in the deed], at all proper and…