The herald., 1896-09-15

community. by paying the rate fixed for
supplying 1t, has right to use reason
able quantity of it in a reasonable man.
ner. Water appropriated for distribu-
ton and sale is ipso facto devoted to a
public use, which is inconsistent with
the right of the person so appropriating
It to exercise the same control over 1t
that he might have exercised If he had
never so appropriated it,
In the present suit this ruling of the
court is assailed, and it is said for the
company that it is opposed to the ruling
of the supreme court of California in ihe
cases or the Fresno Canal company vs..
Howeii, W Cal, ia, and the Fresno
Canal company VS.. Dunbar, 80 Cal, $50;
that In those two cases the supreme
court OF California expressly recognized
t5e existence OF such right and enforc-
eu II IN behalf of such water companies.
An examination Of those cases clearly
SHOWS that counsel is altogether mista..
en- IN mis- statement; no such question
was there raised, considered or decided.
IN neither Of those cases did it anywhere
appear that the water, a part of which
thS FRESNO canal company undertook to
sen, IN the one case, and to furnish, In
the other. was appropriated by the COM
pany under or by virtue of the constitu-
ton and laws of California, nor was it
suggested in either case that the water
mad otherwise become subject to the
and laws of California and for that rea-
son that only legally established rates
could be charged for its use. But SIM
liar question did arise in the supreme
court of Colorado in the case of Wheeler
vs. the Northern Colorado Irrigating
company, IL Pac. Rep, 487, and was
tnere decided in precise accord with the
ruling of this court in the San Diego Land
and Town company VS.. the City of Ma
tional City, supra.
In the Colorado case the pleadings
showed the water company to be car
rier and distributor of water for irriga-
tlon and other purposes, with a canal
upwards of sixty miles in length, and
capable of supplying water to irrigate a
large area of land. 1t had undisposed Of
a sufficient quantity of water to supply
the wants of the relator, who was one
Of the land owners and consumers under
the canal, and who could obtain water
from no other source. He rendered the
amount of the annual rental fixed by the
company and demanded use of water for
the current season, but the company de-
manded as a condition precedent to the
granting or his request that he buy in
advance the right to receive and use
water from it's canal, and pay there
for $40 per acre-just as the San Diego
Land and Town company in the case
decided by this court, demanded $50 per
acre at one time and S100 per acre after
wards. for similar so-called water
right" The supreme court of Colorado
held, as did this court in the case refer
red to, the demand, in addition to the
annual rates, for the so-called water
right illegal and void.
In the subsequent case of Holmes VS.
the Agricultural Ditch company. 2S Pac.
Rep., 966, the supreme court of Colorado
neld that the constitutional right of in
dlVldual consumers, upon tender of the
! regular rates, to water diverted by car
rier cannot be evaded or qualified by
regulation compelling the purchase Of
stock in the carrier company asI con-
dition precedent to it's use.
In line with what has been said above
are the cases in the supreme court of
l. company. Sc Cal, 431, and People VS..
Stephens, So Cal. 209. In Price VS.. Riv-
efside company it was, among other
things claimed that the company was
purely private corporation and was not
obliged to furnish water to the public.
1t Is impossible to reconcile the decla-
rat1ons or the supreme court in either of
the cases last referred to, or in any other
case to which my attention has been
called, with a right on the part of any
corporation appropriating water under
and by virtue of the constitution and
laws of California, for sale, rental or dis
tribution, to exact any sum of money or
other thing, in addition to the legally es-
taDllshed rates, as condition upon
which 1T will furnish to consumers wa
ter so appropriated. In the very late
case of Merrill VS.. South Side Irrigation
company, "A Pac. Rep. 720, the supreme
court Of California held that the pro-
visions of section of article XIV. of the
constitution of that state apply to all
water designed, set apart and devoted
to purposes of sale, rental or distribu-
ton, without reference to the mode of
its acquisition; and accordingly, it held
in that case that water acquired by the
irrigation company from the city of
Los Angeles was subject to the const-
tutfonal provisions referred to, and that
the company, having supplied 1t for irri-
cation to the plaintiff in that case, was,
by virtue of the second clause of Sec
tion 552 of the civil code of California.
legally bound to- continue such supply
at the rates it had established-the COM
pany having on hand sufficient sun
ply for the purpose
OF course, no company can be COM
PEELED to furnish water beyond it's ca
pacity. Indeed. consumers themselves
are vitality interested in seeing that the
capacity of the distributor is not over
taxed. So mucn so, that in Colorado
it is held, and properly held, that a
consumer who settles upon and i'm
proves land by means of water appro-
priated and distributed under and By
virtue OF the constitution ana laws of that
state, giving to the first in time the first
in right, can maintain a suit against the
distributor of such water to prevent the
spreading of it beyond the capacity of
the system, so as to endanger the sup
ply of those whose rights have already
vested and upon the faith of which they
have invested their money and made
their improvements. wyatt vs. l.. and
w. Irrigation company, SO Pac Rep
144)
In California the same right is Sc
cured to the consumer by statute as we'll
as by judicial decision. 1t has already
been seen, from the reference made u
the case of Price VS.. Riverside L. and |.
company, Sc Cal, 431, and Merrill VS..
South Side Irrigation company, "A Pac
Rep. 720, that the right of the consum.
err to demand of the corporation sup
ply of water presupposes sufficien!
supply for the purpose under the control
of the company; and by the provisions
of section 552 of the civil code of Cah-
once vested is protected from the injury
of having his supply of water cut oft;
for it, in terms, declares him entitled to
the continued use of the water upon the
payment of the rates established as re-
quired by law. Necessarily growing out
of this right to the continued use of the
water which he has acquired as per-
petual easement to his land, is the right
of such consumer to prevent, by injunc-
tion If need be, the distributor from dis
posing of or attempting to furnish 9TH
ers beyond the capacity of the system,