04. The Agreement Between Chandler and the Mesa Canal Company

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    This Article of Agreement, made and entered into this 10th day of January, AD 1891, by and between the Mesa Canal Company, a Cooperation duly Organized and legally existing under and by virtue of the laws of the Territory of Arizona, having its principal office and place of business at Mesa City in the County of Maricopa, party of the first part, and A.J. Chandler of the city of Phoenix, in the County and Territory aforesaid party of the second part, Witnessith: That whereas the said party of the first part is an irrigation corporation, and as such is now the owner operating the Mesa Canal in the said County and Territory. And whereas, said party of the second part desires to increase the size and capacity of said Canal between the point in the Salt River where the water is now taken out on by consent of the directors of the Mesa Canal Company may hereafter be taken out, and at a point in said Mesa Canal know as “Ayer’s Head Gate” so as to increase the flow of water through said portions of said Canal as aforesaid, and for the purpose of the party of the second part, his associates and assigns, obtaining waters thereby through said Canal, and in order to have said Canal increased in size, dimensions and capacity without cost or expense to the said party of the first part, and without in any way interfering with the right, title, interests or privileges of said party of the first part in and to said Canal and the water flowing through said Canal, except as herein after provided.  And whereas, at a meeting of the stockholders of said Mesa Canal Company, the party of the first part duly called and legally held at the office in Mesa City aforesaid on the 10th day of January, AD, 1891, the said stockholders by vote thereof, viz: 221 votes for and 130 votes against, direct that this agreement in terms words and figures as herein after expressed should be by said Mesa Canal Company entered into with the said A. J. Chandler, his associates and assigns, and that the President and Secretary of the said Mesa Canal Company should execute said agreement on the part of said Canal Company under the Corporate name and seal, and sign the name as President and Secretary thereof. Now therefore, the Mesa Canal Company, party of the first part, for and in consideration of the sum of one dollar, to it in hand paid by the party of the second part, the receipt whereof is hereby acknowledged, and for the further consideration and purposes have in contained and expressed does for itself and for its successors or assigns, herby grant unto the said A. J. Chandler, his associates, heirs or assigns, forever, the following rights and privileges upon the terms and conditions herein expressed, viz: That the said A. J. Chandler, his associates, heirs or assigns, shall have the right and privilege of entering upon any and all portions of said Mesa Canal at any time prior to the first day of March, AD 1891, for the purpose of widening and enlarging and increasing the size and capacity of said Mesa Canal between the point in Salt River, where the waters is now on may hereafter be taken out for the said Canal, and a point on said Canal known as  “Ayer’s Head Gate”, and enlarge and increase the size and dimensions of the main dam and headgates at the point of the Commencement of said canal in Salt River, and enlarge and increase the size and capacity of said Mesa Canal, so that the same, when so enlarged and increased in size, shall have a carrying capacity not to exceeding 40,000 inches of water, miner’s measure, not less than 10,000 inches of waters, miner’s measurement, and the said enlargement shall be fully made and completed by the 30th day of December AD, 1891. The present carrying capacity of said Mesa Canal for the purpose of this agreement shall be 7,000 inches, miner’s measurement. All the cost and expense of enlarging and increasing the size of said dam, headgates, and canals aforesaid, shall be borne and paid by the party of the second part, his associates, heirs and assigns forever. And said enlargement shall be made without in any way interfering with any of the rights, titles, interests or privileges of said of said party of the first part in and to said canal, except hereinafter provided. The party of the first part hereby reserves the right to further enlarge said portions of the Mesa Canal whereas they deem it necessary to do so, provide such enlargement shall not interfere with or lessen the rights or privileges herein granted to the party of the second part, his associates, or assigns. The said party of the second part, his associates or assigns shall have the right to turn the water out of said Mesa Canal for the purpose of enlarging the same aforesaid from time to time as the work may progress or require; but said water shall not be turned out of said Canal for a period exceeding 15 days at any one time; after being turned out for 15 days it shall be turned in again and remain in said Canal for a period of ten days each time it is turned in unless permission is granted by the directors of the Mesa Canal Company to turn the water out of said Canal for a longer period than the time above specified provided it shall not be turned out at all between the first day of March and the first of November without the consent of the directors of the Mesa Canal Company. Said party of the second part, his associated or assigns shall in enlarging said main dam, headgates and canals as aforesaid, in all respects  enlarge said dam, headgates and canal in a good substantial and workmanship like manner, according to the most approved methods of constructing and building irrigation canals. All suits, liabilities, costs, expenses of judgments and all damages or loss incurred or sustained by the party of the first party caused by said enlargement, shall be borne by the party of the second part his associates or assigns forever, and all suits or proceedings against the party of the first part by reason of said enlargement to be defended at the expense of the party of the second part. It is expressly understood and agreed by the parties hereto, their successor or assigns, that at all times when there is an abundance of waters in Salt River, liable to appropriation and flowage though said Canal when so enlarged then and at all such times the said party of the first part shall have the right to use from said Canal in addition to the amount hereinbefore specified as the capacity of said Canal 2000 inches of water, miners measurement. The management and control of the canal between the point known as the Ayer’s Headgate” to and including the dam in Salt River, when so enlarged as aforesaid shall be in the party of the second part, his heirs, associates or assigns, provided that the party of the second part, his heirs, associates or assigns, shall before he or they are entitled to receive or use any water thought said Canal, first deliver to the party of the first part, their heirs or assigns, at the point in said Mesa Canal known as the “Ayers Headgate” and shall continue to deliver the 7,000 inches of water, miner’s measurement above expressed as the carrying capacity of said Mesa Canal by the decree of any count. Provided the stockholders who are now using, or who may hereafter use, water above the “Ayers Headgate” shall have their water delivered to them as at present above the “Ayers Headgate” aforesaid, or said stockholders shall have their waters delivered to them at the “Ayers Headgate” with the other stockholders as they may demand; provided said Mesa Canal Company further agree that in consideration of the said A.J. Chandler, his associates  or assigns delivering said water at the aforesaid point of deliver within the time specified, to pay to the said A.J. Chandler, his associates or assigns the annual rental for said 7,000 inches of water forever at $8.75 (eight and 75-100) Dollars per share of stock, payable semi-annually. It is hereby agreed that if any disagreement shall arise between the parties hereunto in relation to the division of the water and any suit shall be instituted thereon by either party hereunto, the parties hereby mutually request the Judge of the Court in which such suit shall be pending to forthwith appoint some suitable and disinterested party to make the division  of the water to the terms of this agreement, until said suit shall be settled either by decree of the court or agreement of the parties hereunto. It is further expressly agreed by the party of the second part that in case of any break in the Canal or dam aforesaid thereby causing the waters to be turned out of said Canal, then and in every such case the said party of the second part, his heirs or assigns shall forthwith, without delay, cause said dam on Canal to be repaired and the waters turned into said Canal as soon thereafter as shall be possible so to do—Provided, further that if the said party of the second part, his associates, heirs or assigns, shall neglect to deliver water as agreed herein or shall fail to carry out any of the terms of this agreement, and shall be notified by the directors of the Mesa Canal Company of such a failure or neglect to carry out the terms of the agreement and shall neglect to carry out the terms of this agreement for a period of ten days thereafter, or in such a case as a break in the Canal headgates and dam whereby the waters is turned out for a period of five days, then and at all such times it is hereby agreed by the party of the second part, his heirs, associates or assigns, that the directors of the Mesa Canal Company shall have the right and power to take full charge and control of said enlarged portion of said Mesa Canal without process of law and the same shall become the property of the Mesa Canal Company and shall as remain until the party of the second part, his associates, heirs or assigns shall fully comply with the terms and requirements of this agreement and then shall revert back to the party of the second part, his associates, heirs or assigns, and shall be and remain in the party of the second part, his associates, heirs or assigns, so long as the terms of this agreement shall be by  them complied with.  This agreement shall not give or convey to the party of the second part, his associates, heirs or assigns, any title or ownership in or to the Capital stock of said Mesa Canal Company, but shall only convey such privilege and right as are herein mentioned. The name of the Mesa Canal shall not be changed, but shall always be known as the Mesa Canal. In witness whereof, the said Mesa Canal Company, party of the first part, has this the 13th day of January AD 1891, caused its corporate name to be hereunto subscribed, and its corporate seal affixed and these present signed by the President and Secretary, and the said party of the second part has signed these presents this 13th day of January, 1891.

                                                                                                    The Mesa Canal Co.

                                                                                                    By William N. Standage, Pres.

                                                                                                    The Mesa Canal Co.

                                                                                                    By William J. Le Baron, Secy.

                                                                                                    Alexander J. Chandler

     

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