Grove Laboratories, Inc. v. The Flowood Corporation

RIVES, Circuit Judge

(concurring specially).

While the well was owned one-third each by the parties to the contract, it appeared without dispute that the water therefrom was never metered, and I cannot say that each party’s right to water was in any definite share, such as one-third of the total amount of water drawn from the well during any particular time. Rather, it seems to me, that each party’s right to water was limited only by his reasonable requirements and by the exercise of a like right on the part of each other party. In other words, so long as the supply was ample, each party could take all of the water reasonably required. Nor do I think the contract susceptible of the construction that each party could sell “its rightful share of the water” to a person or persons not parties to the contract if such water was furnished for use on property not owned by one of the contracting parties. The provisions of clause 5 of the contract, however, I think, required a distribution of any income from sale of water only when the water was furnished “to other persons or property”, not when the water was furnished to property o*wned, both when the contract was executed and when the water was furnished, by a party to the contract. I therefore concur specially.