AGREEMENT
THIS AGREEMENT is made and entered into this Sc day of November A. D. 1946 by and between The Montezuma Valley Irrigation Company, a corporation, hereinafter referred to as EMPLOYER, and Raymond F. Johnson of 3114 East 17th Avenue, Denver, Colorado, hereinafter referred to as EMPLOYEE.
WITNESSETH: Employer agrees to employ Employee as general superintendent of The Montezuma Valley Irrigation Comp with relation to the necessary maintenance and construction of the property owned and controlled by Employer and used in the business of acquiring and distributing water for domestic and agricultural uses in Dolores and M4ezuma Counties, Colorado.
The duties of Employee shall be that of generally
superintending the work and program carried on by Employer for the various and different items of work necessary to be per-formed, and as coordinating the work of the other employees, and to otherwise cooperate with and assist the Board of
Directors of The Montezuma Valley Irrigation Company, subject, however, at all times to the orders, directions and instructio of the Board of Directors of Employer.
The term of this contract shall be for a period
commencing on the 1st day of January A. D. 1947 and continuing to and until the 31st day of December A. D. 1949, or for a period of three years from and after the 1st day of January A. D. 1947.
As compensation for such services, Employer agrees to pay and Employee agrees to accept the sum of Three Thousand Dollars per annum, payable in twelve equal monthly install-ments of Two Hundred Fifty Dollars ($250.00) each month, and In addition thereto, Employer agrees to furnish living quarter
-1-for employee upon company owned property now occupied by the present superintendent whose contract expires January 1, 1947. The possession of this property is to be delivered to Employee as soon after January 1, 1947 as may be conveniently done, but in no event later than February 1,
1947,
and until possession of the premises are delivered to the employee the company agrees to pay employee at the rate of $5.00 per diem expense in lieu of living quarters until such time possession is delivered. Upon delivery of possession of living quartersper diem shall cease. Said living quarters are to be furnished without cost to the Employee provided, however, that Employee shall pay or cause to be paid all fuel and electricity used in connection with the occupation of said premises. The only utility furnished by the Employer is water. In the event said living quarters are destroyed or becomes uninhabitable Employer
agrees to furnish other living quarters to Employee.
1 Employer further agrees to furnish proper transportation facilities used or required in connection with the services to be performed by Employee in line of duty as prescribed by the by-laws of the Board of Directors.
.During the continuance of this contract, Employee. agrees to devote his undivided time efforts and attention to the business of Employer, and shall not, either directly or indirectly, alone or in a partnership, be actively connected with or concerned in any other business or employment whatso-ever during the term of this contract; and he shall serve the Employer faithfully, diligently, and according to the best of his ability in all respects, and use his utmost en-deavors to promote the interests of Employer.
Employee agrees that he will use transportation facilities provided by Employer solely in connection with
-2-services and duties to be rendered by Employee and that he will not use any of the transportation facilities in con-nection with any business other than that of the Employer, nor will he use said vehicle or vehicles for pleasure driving; and that during the period of time that he is operating a
motor vehicle, he agrees in all respects to fully comply with and abide by all the rules and regulations of the State of Colorado and other governmental agencies applicable to the operation of motor vehicles upon the highway.
In the event that Employee shall fail to devote his enti time, attention and energy to the performance of his duties, and shall otherwise failto faithfully, diligently and to the best of his ability to promote the welfare and interest of Employer, then and in that event, Employer may discharge
Employee; provided, however, that in the event Employer desires to discharge Employee for a breach of any of the covenants and agreements to be kept and performed by Employee, Employee
shall be afforded an opportunity to be heard before the Board of Directors of Employer and shall be advised of the charges against him in writing at least ten days before the time
within whbh the same is to be heard by the Board of Directors of Employer; and it is agreed that the decision of the Board of Directors of Employer in this respect shall be final, bind-ing and conclusive upon all parties, and that no appeal shall be permitted or allowed to any party, and that the hearing may be informal, and neither paty shall be permitted to have the services of any attorney at said hearing unless notice to the other party be given at least seven days prior to the date of such hearing.
3-'It is mutually agreed that Emnloyee shall -be el;titled to a vacation each yea- with ray for a neri d of not less than two weeks, which vacation shall be taken at a time agree .unon between Emnloyer and Employee and if emnloye and•
Emnloyee cannot agree unon the time during which seid Emnloye shall take said vacation, Emnloyee may take the same at any time he so desiYes between the dates of December 1 and Anril of the following year.
Emp, yee agrees that during the continuation of this agreement that he will well and truly nerform to the best of his ability duties herein imposed under the general sunervisi of the board of directors of the Emnloyer and the Emnloyee agrees that he will not eithe- directly or indirectly acquire seek or obtain any proxies to vote any stock of the Emnloyer at any special or regular meeting of the stock holders and that he will completely refrain from interferring with the prerogatives or rights of the stock holders Or board of
directors excent as otherwise set forth in this contract. The n-ovisions of the Articles of Incornoration and By-laws of employer where anplicable are hereby incornorated by referencelifullyto all intents as if set forth at length and made a nart of this contract.
It is further mutually agreed and undestood by and between the narties hereto that this agreement is binding and obligatory upon the successors and asigns of Emnloyer, and that this agreement may not be amended or modified excent by written agreement subscribed by both narties.
Witness the hands and seals of the narties hereto the day and year first above written.
ATTEST:
Secretary
THE By
L, IRRI ATION COMPAD
ident
-AMENDMENT TO AGRELNENT
The certain agreement dated November 30,1946 between The Montezum Valley Irrigation Company and Raymond F. Johnson is hereby amended as
follows:
are
Lines 21 to lines 29 inclusive pagea,.2xXX stricken
and of no force and effect.
Lines 10 and 11 page Agiamended to read as follows: In the event Employee shall fail to devote sufficient time, attention and energy to the performance of his
duties".
These amendments are effected to permit Employee to undertake
certain activities or business which were denied under the original
contract.
Except as herein modified the said original agreement remains in
full force and effect.
Executed in duplicate this 12th day of Apri1,1949.
ATTEST:
Sec etary
r
THE MONT V LL IRRIGATION CO. —
President President
Raymond'. Johnson
haul Contract.
This asreeiJent made and. entered into this day off 1) and between the ]lontezuma Vsiley Irrigation Jistrict,
WiS eotLi ,
party of the first part and of Cortez, Colorado, nart, f the ' second part,
witnesseth:-That the said .eartOof the second part does hereby, for himself his heirs, executors and administrators, covenant, promise, and agree with and to the said party of the first part, its successors and assigns, that he, the said party of the second part, shall and will at his own risk, ,1:-er -uric considera-uion, hereinafter mentioned, haul from xxida points within the 'Town of Dolores, jolorado, to what is known as the Ground Hog Reservoir in Dolores, County, Colorado, the following described material for use in the repair and construction of the dam of said reservoir, to-wit: One (1) rock crusher, one (1) cement mixer, one (1) gasoline engine, two (2) car-loads of cement and approximately ten thousand (10,000) feet of ltmber; said material shall be hauled from such points within the Town of _Dolores to saxh pOints located at said reservoir site as shall be designated by the uerinüendent of
shall be delivered by by him, as rapidly as In no event shall an
Construction of said first party; and sold material second part in as good condition as dhen received
'ossible after the execution of this contract, but of such material be delivered later than fo .ty days from the date hereof unless so ordered by first party.
And the said party of the first part does hereby, for itself, its successors and assigns, covenant and agree, with and to the said par of the second part, his heirs, executors and administrators, that it, the said party of the first part, its successors and assigns, shall and will, LI consideration of the covenants and agreements being strict-ly performed and kept by the said part of the second art, as specified, well and truly pay, or cause to be paid unto the part f the second part,
or
ineta—J
his heirs, executors, administrators,/ass*gns, the sum of mtmeftmeitimm 4410444. for each and every hundred oolnds of freight so hauled by second
party, the same to be paid in manner following;;.settlemext.for;freigkt.. cit11 11(14A.IQ.In.r544Q.Q11.Vn.fiZIJt.a440444Y.Qf.Q40;.rA4th
T1e.I.:44te4v-41.Y411ey.IrrigatiQa...)istrict. By .... .
•/;%7
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In re The Dolores No.2 L.& C. Co. Water Contracts.
An regards the status of what may be designated,for convenience, as the "Dolores No.2 Water Contracts," these contracts are six in number t and were made by The Dolores No.2 Land and Canal Co.,aa follows:
William R.Luxton, dated April 10,1389, amount 1-3 cu.ft. recorded Oct.26,1892, Bk.14,P.202
dated April 10,1889, amount 1-3 cu.ft. recorded Mch.3,1894, Bk.14,p.293.
(now owned by James H.Treec.) James Reeman,
Frank W.Thomas,
Victor H.Lee
William M.MaY.
William M.May
dated May 11,1889. amount 2-3 cu.ft. recorded Feb.20,1896. Bk,14,14424
(now claimed by J.J.Harris & Co.)
dated Mqy 13,1889, amount 1-3 cu.ft. recorded Dec.9,1908, Rk.36,p.45.9.
( now owned by H. W. Royce. ) dated June 15,1889
recorded Mch.2,1894 (2-3 cu.ft.claimed by
2-3 cu.ft.claimod by
amount 1&1-3 cu.ft. Bk.14,p.288.
Mont.McCall John D.McLear) dated June 15,1889 amount 1 cu.ft. recorded Mch.2,1894 Rk.14.n.283
(row owned by William Ritter.
The contracts were for use on lands now within the bounda-ries of The Montezuma Valley Irrigation District,which District
was formed in 1901; except that now owned by Wm.Ritter; and they are all Jam substantially the same in form arc i tenor; iiiiiMMIA2Mammil the features of interest in this consideration being:
a. The Company, first party,agrees to convey and deliver to the contracteel second party,during the term of the corporate existence of said The D.No.2 L.& C.Co.a certain amount expressed in cubic ft. per second of the water of the Dolores river in said Montezuma
County for use for irrigation and dome(Itic purposes upon certain described land in said County; subject to certain terms,conditions and regulations,providing for the term of the irrigation season of each yearl the regulation of the use of the water,etc.letc.
• I.
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organization), and when the new company had been organized, the old company was to convey to the new company the canal property and ap-Purtenances,free fpom all indebtedness or incumbrances egainst it;
and thereupon"all obligations of the first party under the contracts In respect to the maintenance and operation of said canal property,
and the keeping the same in repairt and tho conveying and delivery of water through the same should wholly cease and determine."
The D.No.2 L.& C.Co. was incorporated in 1888,and the term of its corporate existence was by its articles of incorporation fixed at 20 years;said 20 years expiring in 1908; and it has been urged that
these contracts expired in the last mentioned year accordingly. But it is a familiar rule of law,that in arriving at the intent of the parties in making a contract,that it must be construed in view of all of its provisions. It should be observed that theisestrut:lents are notin the nature of"sales of waterrightsflor of an in-terest in the ditch company's system and waterTights,but are con-tracts on the part of the company"to convey and deliver water". For how long? "During the term of the jamilmanuip existence of the companMwhich,like an individual, could not do so any longer•)ard, by reference to clause "",during that of its"successors and assign" or in other words for performance for all time. And this view of
the matter is strengthened by the provisions in clause"e",from which it is clear that the contemplation of the parties wasI that the capacity of the system should be sold out under like contracts
and the property turned over to the contractees in full ownership. If there had been any intention to make mem* contracts merely for 20 years or such part thereof as might remain of the company's life, there would in the ordinary course have been an explicit statement to that effectiand as the
company
evidently franed these contracts, therl must,in case of any question as to the meaning,be construedmost strongly
in
favor of the contracteest according to the rule of construction in such case. And 1t may be further observedin
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2
b. The first party
is
to keep its waterways,etc.,in good order, etc, Nand shall have the right to levy an annual assessment upon each contractee to meet the ordinary expenses of maintenance,repair and operation thereof; such assessments to be payable on or before No-veraber 1st of the current year, and shall be for each contractee gach part of the whole of said expenses as the amount of water con7. tracted for by such contractee in of the then estimated capacity of the main canal of the first party, rot exceeding 415.00 per cubic foot per second.c. The second party agrees to make certain payments to the first party in amounts and dates as specified in each case,(except in the two May contracts,which were issued full paid,in consideration of certain old ditch rights turned over to the company by him;) said payments beinc; designated as"deferred payments", and. evidently goin to make up a full consideration for the first party's agreement to convey water; the full amount of each consideration being figured, an it would appear t upon the basis of 01,000,00 per cubic foot per second. No provision is made for suspension of the duty to con-vey water in case of default of payment of either"assessment"or"de-ferred payment";the remedy being by gait,with right of lien upon
the land.
d. The words"first party" wherever used in the contract, shall be taken to include its successors and assigns.
e. Whenever there should be outstanding and in force contracts for the conveyance and delivery of water on the part of the first party for the term of the corporate existence of The D.No.2 L.& C.Oo.in
the aggregate
tent&
amount of the then full capacity of its canal system, and all said contracts shall have been credited as fully paid up,the Board of Directors of the first party shall deignate 5 of such contracteen to be dirrctors of a new company to be formed on the cooperation plan for the carryin and delivery of water to the stockholders thereof(who nhould be thecontractees of
the old4
this connection,that these forms appear to have b'-en framed just after the decision of the gupreme Court of Colorado,in January,1888, (Wheeler vs.N.Colo.Irr.Co.,) where it was held that a ditch company
was a common carrier t and did not own the water, and consequently had no water to"sekl",and that what it acquired under the ,atutes was the right to divert and carry for the users; and that was all that it could do l consequentlyl or agree to door properly bind itself to do, or bind Ito gaccesors in title to tho property to do. Furthermore no far as regardethe term of the corporate existence of the D.No.2 L.& C.Co.", that was not necemmarily for even 20,years,as the
corpo--04d
ratiom might have been dissnved under corporation act the same year that it formed or in which it made these contracts,for that matter. And as a matter of fact,iteterm of corporate existence"as a sepa-rate corporation ceased with its consolidation with The Colorado Water Supply Company in 1890. It was necessary to put something into the contract to show for what ltingth of time it was to run, an there was nesale of a perpetual water right" such as had thereto-fore been the custom in such casecoccording to the forms theretothereto-fore In use in such cases. It would have teen competent to make a 20-year contract or a 10 20-year contractl or a one-20-year contractlfor that matterl or for any other specified term. The phraseology in this contract is,that the first party binds itself to carry water no long as it remains a corporation,with the additional covenant that its successors and assigns shall take the property subject to the con-tinuinig obligation ot its agreement to"carry and deliver".
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The history of the title to the canal system subsequent to the year 1889 in which these contracts were all madelid as follows: In 1890 the Dolores No.2 Ti.eic C.Co.was consolidated with The Colo-rado Water Supply Co.thus combining the two system:tunnerand"big cut",under the name of The Colorado Consolidated Land and Water Co.; all existing incuubrances were duly released of recordl and each of the old companies conveyed all its propertties and ri,gUts whatsoev-er to the Consolidated Co.,which of course took the same subject to these contracts. The Consol.Co.thereupon,in same year,1890 o gave a trust deed on its entire system to secure a bond isgue;said trust deed and all subsequent deeds and trust deeds conveying the system . "together with all contracts for water rights"; this last phrase be-ing included even in the final conveyance to the District. The title comes down from the Cons.Co through foreclosure of this 1890 trust deed‘which was recorded 2 years prior to the recording of the first of these contractsi ) and sundry subsequent deeds and trust
deed and mortgage foreclosures; but,while theme contracts were not of record at the time of the recording of said 1890 trust deed,it must be obseved: first,that there was the above cited reference In ibe trust deed to the existence of tkamm"water rights"; second, that the contractekwere the in the active enjoyment of the contract rights; third,that the bonds were taken by the owners of the prop-erties,so that the bondholders(who took the property under the fore-closure) would be charged with actual notice; fourth,that as previ-ousi,[suggented,these water contracts were not a sale of an
inter-est in the property,but a contractual obligation upon its owners, and noreover represented an actual valuable asset towards the bond-holders i security to the extent that the "deferred payments" were still outstandingos they were to a very considerable amount, at the ddite of the execution of the 1890 trust deed. And in view of the first three of the consideration,at least,the familiar rule would be applicable,that when conditions are such as to put the purchaser on his inquirvhe in presumed to have actual notice,and
nt 6
nAtimItgmmem . it .• • ill it 01 0a f tt ••• ,0' t. • •to. • fi I
that when he has actual notice,the failure of the other party to record in immaterial.
It must further be observed,that while the"twenty-year" period expired in 1908,the District,which was then the owner of the system, has continued ever since to deliver water under these contracts;
and that it has accepted themaintenance charges"on the basis of 15.00 per cubic foot per second for the years 1909,1910 and 1911; except that l as to the Thomas contract,wqter has not been demanded on the land tentioned in the contract since glin 1910,but on which the maintenance charge was accepted for 1909. This would tend to show that the District, as well as the contractees,had constfued the contract as not a "twenty-year"contract,but a continuing conr-tract;and the rule of the law isI that where the terms of a contract are not clear,and the parties have given it a particular construe-tion,such conFtruction will grin have great weight with the court In giving effect to its provisions. And in the same connection might be mentioned the fact that,tha except as to the May-Ritter contract,the District allowed lands to be "petitioned outflon the assonant basis that these contracts were"perpetual rights".
Another consideration might also be taken to have some weight in getting at the intention of the parties in making these con-tracts. The"estimated capacitrof the main canal of The 1).No.2 Cony was 600 cubic feet per second. On the basin of the CeP711404,40
/ o,a404m0f i 7,0 that capacity, the owners of the property would get for it #600,000. It is posnible,but not likelly,that either of the parties would figure that the contractees should pay that aggregate amount, and.also the expenses of maintenance, and that in 1908 the perammativizahoudisibaxtmedirdwarbtue company should have the property in its habds once more clear of all claJms,and ready for another start
eiArAr4iZZ'
t,.
vr ill 7 +t
,
by that time,— a matter,by the way,practically in its awn hands: In view of the foregoing considerationi'and I believe the same cover all the points arising in connection with the question in hand, I am constrained to say,that,(rhile the matter ilt,of course,
not without difficulty,as are all questions upon which there has been no direct adjudication, arid I have been unable after careful research to find any dccided case directly covering this question,) I am of the opinion that these contracts wmuld be held to
beper-petual contracts,and binding alike on the contracteest and assigns, and on the District;the clause in paraweagfteabovel as to"formation of new company,etc.",being of course at least in abeyance so long
as the property is owned by the District.
And. I may add, that I have stated the facts as fully as I have In this matter more particularly for the reason that Ny connection with the D.No.2 L.& C.Co. at the time these contracts were made might be taken to color or influence my conclusions from the facts; and that the matter might, if desired, be referred, upon the"statement of facts",to others for their conclusions therefrom.
Ac to whether or not these contractees can be made to pay a higher rate of"assessment for maintenance", the contracts provide a maximum levy of $15.00 per cubic fottt ptr second to meet the or-dinary expenses of maintenance,repair and operation of the water ways of the first party; and. that of itself answers the question. There is no Agreement on their part to pay any higher rate in the event of extraordinary expensemor in the event that the owner of the property should conclude to add reservoirst for instance,to in-crease the available supply. On the other handi the contract on the part of the owner is,to convey"the waters of the Dolores river," and in case of"ingufficiency of water in the Dolores river, the
owner shall not be liable for any shortaae in the amount agreed to be carried, and may prorate the water which it may be able to
8
therefore on the part of the owner of the property to furnish any stored water under these contracts. And it may be added in this connection, that neither the Articles of Incorporation. or the"Map & Statement"of The D.No.2 L.Pc C. Co.dedisdnated any reservoir ars being a part of the pro*Ised system.
As to the question raisedi as to whether a contra.ctee could change
A-4a-the place of use of A-4a-the contracted to be carried from from A-4a-the land designated in the contract to land irrigable only from the sYatem of the Colo.lgater Supply no., the language cif the contract Is, "That when the F.'econd party has tiny paid all the sums by him agreed to be paid. to the fir-t party under this contract,he shall have the right to relocate and change the use df the water herein contracted to be delivered onto any other tract of land under the lines of the water ways of the firlt party,provided, tale same be
done without any d.etrirnent,liability or expense to said first partyft. Reacting this in connection with the clause d, as tonpartynincludinz
F3uccesors and assignslit would seem that the change might be made to any part of the system. As the amount in any case,however, would be small,the question is hardly of much practical implitance; and in ary event the owner of the system could probably make a good shoving as to"detriment“, if the was any special reason for resisting the Erllication to change to the “tunrel"systein:
Dated May 28,1913.
In re The Dolores No.2 L.& C.
