THE IRRIGATION AGE. 



275 



(Continued from page 256.) 



the ditch company to determine the question of her right to 

 have from it the "bought water" which had been conveyed 

 by the deed from Starbird. This action was abandoned/ be- 

 cause, as it was claimed, Starbird refused the necessary funds 

 for its prosecution. The action, the supreme court of Colo- 

 rado says, In Starbird vs. Jacobs, 105 Pacific Reporter, 872, 

 should have been continued by Mrs. Jacobs to a final deter- 

 mination, for, upon its result, whatever way the suit might go, 

 her subsequent action must largely depend. 



After the abandonment of her suit against the ditch com- 

 pany. Mrs. Jacobs sued Starbird, in the case which was by 

 his appeal here before the court, to compel a specific per- 

 formance on his part of his contract as exemplified in his 

 deed. The trial court favored her suit, but the supreme 

 court does not think that she was entitled to a decree of 

 specific performance, or in lieu thereof, a Judgment for 

 damages. 



If Starbird had title to the "bought water," as the trial 

 court found, then specific perfomance could not be decreed, 

 the supreme court says, for he had fully perfomed by con- 

 veying it. The wrong for failure to deliver the "bought 

 water," under such circumstances, was the wrong of the ditch 

 company. On the other hand, if, as a fact, Starbird attempted 

 to convey what he did not have, then, before he could be 

 mulct in damage, such failure of title should be satisfactorily 

 established, and this was not done. Beside, to reach the result 

 shown by the alternative money judgment obviously the cor- 

 rect measure of damage was no applied. 



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