Arizona republican., 1905-01-08

! cy and was bound to deliver the wat CT to any one being an appropriator who fell within the rules of law found applicable by the court upon the pay ment of a reasonable charge therefor.
 'fThe defendant company claims that i it has right to charge such persons as a reasonable rate for the service of the water, such rate as will return to the defendant corporation a fair in- terest upon it's investment, and that | it is not limited to the charge that 1t has hitherto and now is making to stockholders and water-right holders. 'I think, because Of the facts and the peculiar circumstances existing in this case, the same rule cannot be ap- piled to the defendant as might be ap- piled to a common carrier. such as a railroad company. It is not sought by the defendant company to charge these people asking for the service of the water anything more than what is a fair return upon the value of the property and a fair return upon the money invested by it's stockholders. I do not see how the plaintiff in an ac- tion to fix charges for water already served to him can complain of that. The fact that certain stockholders obtained the water at less rate than he did which they took in lieu of divi- dends, seems to me affords him no ground of complaint, if he is served with water at a reasonable rate.
 His contention is that he should pay for the water a reasonable price and that he is willing to pay it, but that the company has fixed the reas- onable price at the amount it charged its stockholders, and if he is to be charged a greater amount the stockholders should be charged the same, and the excess be returned to the stockholders in the way of divi- dends. But it amounts to the same thing, if instead of receiving divi- dends in the way of money the stock holders and water-right owners, who are only stockholders in a different form, take it in water in lieu of money
 "In view of the facts of the case and custom existing, and the situation of all the parties, think it only fair that the company should be allowed to charge non-stockholders and non- water-right owners a reasonable rate for the service of water, which should be such a rate as would return the company a fair profit on its invest ment. Therefore on that branch of the case I hold that the defendant
 
 plaintiff a fair compensation for the delivery of this water, and that the defendant company is not estopped to say that such compensation shall be more than is charged to stockholders, but that the defendant company can fix upon what is a fair compensa- tion, irrespective of what it has charg- cd the stockholders of the company.
 That, then, brings the question for the court to determine as to what is a fair rate. The company has hith- erto charged the plaintiff in this case, and others l believe similarly situat- ed. something like S6.50 per inch per year 4 portion of this amount was paid by the plaintiff to the defendant under protest, the court to determine ultimately what was a fair charge for the distribution of the water. Wheth- CT or not the court can in this case determine what is a fair rate and have it applicable to other cases, it is unnecessary for me to say now. I am inclined to the view of the defend ant in that respect that I cannot fix a rate that will be applicable at all 1 times and under all conditions, be- cause such conditions vary from time to time; but it seems to me that in this case I can determine what is a fair rate for this plaintiff to pay for the water which he has received, which is the subject of this litigation. l am quite clear that six dollars and half an inch per year is altogether too much. There should be paid by the plaintiff such sum as will return to the defendant company a fair rate of interest on it's investment if all the water sold by it was sold at such rate; but such rate should not be in excess of what the farmer can pay and, with such payment, mature and market his crops at some profit to himself.
 Tt is not easy to determine what is such a fair rate. 1 have taken the property and the investment of the defendant company to be worth ap- proximately $50, ,OOO. The carrying ca pacity of the canal for which the com pany can sell water is approximately 5000 inches-the carrying capacity may be greater, but the amount that the company can safely contract for can not, it seems to me, exceed 5000 inches. The expenses of the operation of the company have been testified to be, during this period. some $12,5OO year. A fair return, it seems to me, upon the value of the property, this $5O,0O0. as I find it should be ten per cent, which would be $5,OOO. That S5,000 added to the operating expens- es makes $17,250. The company would realize this amount from a sale of 5000 inches at $S.45 an inch per year. That l think is a fair and proper amount for the plaintiff to pay for the water in this case, and judgment will be entered accordingly"