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<br />001474 <br /> <br />have heard engineers says that it takes a 50 year <br />record to reveal a safe extreme minimum, or <br />likewise a safe extreme maximum, but that for <br />general calculation of averages a 20 year record <br />was safe.132 <br /> <br />c. Value of Remedy <br /> <br />But, assuming that the Upper Basin could satisfy the <br /> <br />elements of an action for rescission, is it an attractive <br /> <br />remedy for the Upper states? It would seem not to be. The <br />Lower Basin generally has established both larger and earlier <br /> <br />uses of Colorado River water than the Upper. If the Compact <br />were voided and the River equitably apportioned, the northern <br /> <br />states would be up the proverbial creek without a paddle. <br />3. Reformation of the Compact <br /> <br />If feasible, courts prefer to reform a contract, in lieu <br /> <br />of rescinding it, due to a mutual mistake. Reformation of <br /> <br />the Compact would clearly be a more satisfactory remedy for <br />the Upper Basin. <br /> <br />Where a writing that evidences or embodies an <br />agreement in whole or in part fails to express the <br />agreement because of a mistake of both parties as <br />to the contents or effect of the writing, the court <br />may at the request of a party reform the writing to <br />express the agreement, except to the extent that <br />rights of third parties such as good faith pur- <br />chasers for value will be unfairly affected. <br /> <br />RESTATEMENT (SECOND) OF CONTRACTS ~155. <br /> <br />"The province of <br /> <br />reformation is to make a writing express the agreement that <br /> <br />the parties intended it should." Id. at comment a. <br /> <br />Clear <br /> <br />and convincing evidence of the intended agreement and the <br /> <br />mistake is usually required. See e.g. Evans v. Hartford Life <br /> <br />Ins. Co., 704 F.2d 1177 (lOth Cir. 1983). <br /> <br />-49- <br />