The assignment of errors upon which the appellants rely is as follows:

The liens sought to be foreclosed by the suit and which were foreclosed by the decree appealed from were authorized by the Act of Congress of June 11, 1896 (Comp. St. § 4686) — the case growing out of the establishment and construction of an irrigation system known" as the “Salmon River project,” under and in pursuance of the Act of Congress approved August 18, 1894 ( 28 Stat. 372 , 422 [Comp. St. § 4685]), and amendments thereto, known as the Carey Act, and of certain legislation of the state of Idaho. The history of the project *104 and the numerous and complicated facts connected with the undertalcing were fully set out in the opinions of this court rendered in cases heretofore brought here, namely, Twin Falls Salmon River Land & Water Co. v. Caldwell, 242 Fed. 177 , 155 C. C. A. 17 ; Twin Falls Oakley Land & Water Co. v. Martens (C. C. A.) 271 Fed. 428 , and Twin Falls Salmon River Land & Water Co. v. Caldwell (C. C. A.) 272 Fed. 356 .

In the Martens’ Case, 271 Fed. 428 , while this court held that the liens created by the Idaho statute, acting under the authority conferred by the amendment to the Carey Act approved June 11, 1896 ( 29 Stat. 413 , 434), are founded upon the contract for the water right, and that the right of foreclosure upon default must be “according to the terms and conditions of the contract granting and selling to the settler the water right,” yet that where the furnishing “company failed to deliver a quantity of water sufficient to comply with its contract and to enable the defendant to reclaim his land, it cannot rely upon the contract as ground of foreclosure for the full amount of deferred payments.” But we further said that where as in that case—

In the preceding case, reported in 242 Fed. 177 , in explaining the scheme devised to taire the benefit of the congressional grant, we said, among other things:

The issues made by the pleadings in the present case are narrow and simple. According to the allegations of the bill, the lands against which *105 the appellee sought to foreclose its alleged liens, and the amount thereof at the price specified in the settlers’ contracts remaining unpaid against each legal subdivision, are as follows:

And the appellee alleged that, according to the terms of the appellants’ contracts, the aforesaid sums bear interest at the rate of 8 per cent, per annum. It is not denied that by the terms of the contract the rate of interest was fixed at 8 p.er cent, per annum, but the defendants to the suit set up by answer that the amount of water to which, under the contracts, they were entitled was 2% acre feet per acre, and here insist that they should not be required to pay any interest until that amount of water is so furnished them, and in no event should they be required to pay interest in excess of 6 per cent, per annum.

The contracts provided for interest at 8 per cent, per annum from the date on which the statutory notice is given that the company was prepared to furnish the water, and the plaintiff alleged that due notice was given that water would be available on and after April 12, 1911. The defendants by their answer admit that “due notice was given the entrymen and owners of said lands by the construction company that it was prepared to deliver water for the irrigation of said lands on and after the 12th day of April, 1911”; but the contention of the appellants is that the notice was ineffectual for any purpose for the reason that the construction company never has been able to deliver to them 2% acre feet of water, for which réason they are not obligated to pay any interest. By their pleadings the defendants to the suit did not question the sufficiency or propriety of the statutory notice, which was, on the contrary, recognized by them in obtaining patents for their lands, and in demanding and receiving water from the company for the irrigation thereof during a long series of years.

It is undisputed that, because of the unfortunate mistake that has already been alluded to, the contracts called for a far greatér supply of water than was really available — the trial court having found, after a most careful consideration of the evidence and of all of the facts and circumstances of the. case, that the amount of water received by the appellants is approximately only 76 per cent, of the amount contracted for, being the same proportionate quantity received by all other irrigators under the system, the purchase price of which should bear interest during the time the appellants received and used the water at the rate of interest specified in the contracts. That is, we think, in accordance with the decision of this court in the Martens Case, supra, and as near absolute equity as the facts and circumstances of the case admit of.

The decree is affirmed.