The herald., 1896-09-15
SAN D|EaD'S WATER SUIT
Lengthy Opinion Handed
Down by Judge Ross
CLEAR CUT DEFINITION OF Inv
No Contract Abridges the States
Intervention Power
HOW TO FIX WATER RATES
Corporations Not Empowered to Make
Any Additional Charges
The Water Involved Charged With the Public
Use Declared by Law
No Company Charged With Public Use Can
Be Estopped by Any Act From Per.
forming the Duties Enlolned
Upon It by Law
Corporations Not Empowered to Make
Any Additional Charges
The Water Involved Charged With the Public
Use Declared by Law

Upon It by Law
The eagerly awaited opinion of Judge
Erskine NJ. Ross in the San Diego case
was handed down yesterday, and covers
thirtynine pages of typewriter man.
uscript.
The interests involved are so large and
SO broad that the opinion just rendered
almost of necessity makes ruling that
will, not unlikely, affect corporation in
terests in general way.
The title of the suit was Charles D.
Lanning, receiver of the San Diego
Land and Town company, complainant,
VS.. H. c. Osborne ct al.
After reciting at great length the main
facts as set out in the bill, copious ex-
tracts are inserted from the answer to
show the grounds upon which it is
strenously contended the water in ques
tion must be continued to be furnished
to the defendants for irrigation at the
annual rate of $3.50 per acre, Judge Ross
in his opinion then goes on to say, as
follows:
At the time of the adoption and TAX
ing effect of the constitution of Califor-
mia of 1879, the provisions of section 552
of the Civil Code of that state were, and
yet are, as follows:
whenever any corporation, organ
ized under the laws of this state, fur
nishes water to irrigate lands which said
corporation has sold, the right to the
flow and use of said water is and shall
remain a perpetual easement to the
land so sold, at such rates and terms
as may be established by said corpora
ton in pursuance of law. And when
ever any person who Is cultivating land
on the land and within the flow Of any
ditch owned by such corporation, has
been furnished water by it with which
to irrigate his land such person shall be
entitled to the continued use of said wa
ter, upon the same terms as those who
had purchased their lands of the cor
pOration."
Sections 1 and 2 of article XIV of
the constitution of 1879 are as follows:
''Sec. 1. The use Of all water now ap-
propriated, or that may hereafter be
appropriated, for sale, rental or distri-
button, is hereby declared to be public
use, and subject to the regulation and
control of the state, in the manner to
be prescribed by law; provided, that the
rates or compensation to be collected by
any person. company or corporation in
this state for the use of water supplied
to any city or county, or city or town, or
the inhabitants thereof, shall be fixed
annually, by the board of supervisors,
or city and county, or city or town
city and county, or city or town, by ordi-
nance or otherwise, in the manner that
other ordinances or legislative acts or
resolutions are passed by such body, and
shall continue in force one year, and no
longer. Such ordinances or resolutions
shall be passed in the month of Febru-
ary of each year, and take effect on the
first day of July thereafter. Any board
or body falling to pass the necessary
ordinances or resolutions fixing water
rates, where necessary, within such
time, shall be subject to peremptory pro-
cess to compel action at the suit of any
party interested. and be liable to such
further processes and penalties as the
legislature may prescribe. Any person,
company or corporation collecting water
rates in any city and county, or city or
town in this state, otherwise than so
esta tablished, shall forfeit the franchises
and waterworks of such person, COM
pany or corporation to the city and coun-
ty. or city. or town where the same are
collected, for the public USE"
Sec 2. The right to collect rates or
compensation for the use of water sup
piled to any county, city and county,
or town, or the inha bitants thereof, is
franchise. and cannot be exercised
except by authority of and in the man
ner prescribed by law"
The late case of San Diego Land and
u
decided by this court and reported in
"a Fed. Rep, p. 10, presented the ques-
ton, among others, whether that COM
pany had the legal right to demand and
receive sum Of money, in addition to
the annual rates 1t was authorized to
charge, as "a condition upon which it
would furnish water appropriated by it
under the constitution and laws of CAL
ifornia, to the persons for whose use the
appropriation was made. The thing for
which that company demanded a sum
OF money, in addition to the annual
rates 1t was by law authorized to charge,
it designated as water right" In
that case this court said: at does not
change the essence of the thing for
which the complainant demands a sum
of money to call it a water right or to
say. as it does, that the charge is i'm
posed for the purpose of reimbursing
complainant in part for the outlay to
which it had been subjected. 1t is de-
manding sum of money for doing what
the constitution and laws of California
authorized it to do, to appro-
prlate water within its limits,
conferred upon it the great
power of eminent domain, and the fran
chise to distribute and sell the water
so appropriated, not only to those need
ing i for purposes of irrigation, but also
to the cities and towns, and their in
habitants, within it's flow; for which it
was given the right to charge rates to
be established by law, and nothing else.
No authority can anywhere be found
for any charge for the so-called water
right
The state permitted the water in oues-
tion to be appropriated for distribution
and sale for purposes of irrigation, and
for domestic and other beneficial uses;
comforting upon the apprOpiator the
great powers mentioned and compensa-
ting it for it's outlay by the fixed annual
rates. The complainant was not Obliged
to avail itself Of the offer Of the state.
but, choosing, as it did, to accept the
benefits conferred by the constitution
and laws of California, 1t accepted them
charged with the corresponding burden.
Appropriating as it did, the water in
question for distribution and sale. II
thereupon became, according to the ex-
press declaration of the constitution.
charged with public use. whenever"
said the supreme court of California, in
McCrary VS.. Beaudry, 81 Cal, 12O, 12l. I
Pac. 1854. water is appropriated for dis
tribution and sale, the public has right