140 



THE IRRIGATION AGE. 



water. It is not necessary, in order that the 

 use should be public, that every resident in the 

 district should have the right to use of the water. 

 The method of assessment here provided for 

 may not have been the best which could have 

 been adopted in order to accomplish the most 

 equal and exact justice which the nature of the 

 case permits. But, nevertheless, we are unable 

 to see that it runs counter to any provision of 

 the federal constitution, and we must for that 

 reason hold the objection here considered to be 

 untenable. 



The Final Owing to the very late date 

 Outcome. in the month when the deci- 

 sion washanded down it is impossiblein this 

 issue of THE AGE to review the matter as 

 fully as would have been liked, but it may 

 safely be stated that the end of the difficulty 

 has not yet been reached . The opponents of 

 the Jaw will undoubtedly make an earnest 

 effort to erase the law from the statute 

 books of California and thus prevent the 

 organization of any new districts, and 

 there is also to be considered the difficul- 

 ties the bondholders will meet in attempt- 

 ing to realize on the obligations they hold. 

 The opinions of the most active workers in 

 behalf of the irrigation cause will be pre- 

 sented in the next number. 



But while considering 



JTudye Ross 



vnr t n -i> i + the great importance of 

 W ater HigMs. , , ^ . . F 



thedecision on the 



Wright Law, the equally important de- 

 cision of Judge Ross of California on the 

 question of water rights must not be over- 

 looked. In the case of Charles D. Lan- 

 ning receiver of the San Diego Land and 

 Town Company vs. H. S. Osborne, Judge 

 Ross decided that where water has once 

 been devoted to public use the right of the 

 supervisors und^r the Constitution to fix 

 water rates cannot be affected by private 

 contract. A few extracts from the lengthy 

 opinion are given herewith, but stripped 

 of its legal phrases and technicalities it 

 means that irrigation and canal companies 

 are not privileged to sell water rights, but 

 can demand only a reasonable compensa- 

 tion for the actual transportation and 

 delivery of the water to users, in other 

 words they may make an annual charge per 

 acre for water delivered, but cannot exact 

 a bonus for the right to have that water 

 delivered. This decision, if upheld by the 

 United States Supreme Court where it 

 will undoubtedly be carried (as was Judge 

 Ross's decision on the Wright Law), will 

 remove the matter of irrigation from the 



field of speculation and make it an every 

 day business enterprise, in which the indi- 

 viduals and corporations who build, own 

 and operate canals can expect only a fair 

 rate of interest upon the investment;, 

 while the immediate effect of the decision 

 will be to pfevent the inception of new 

 enterprises and possibly the completion of 

 some already begun, its ultimate effect 

 cannot but fail to be beneficial. 



Extracts from At the time of the adop- 

 Califorttia tion and taking effect of 

 Constitution. the Constitution of Cali- 

 fornia of 1879, the provisions of Section 

 552 of the Civil Code of that State were, 

 and yet are, as follows : 



"Whenever any corporation, organized under 

 the laws of this State, furnishes 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 corporation in pursuance of law. And 

 whenever any person who is cultivating land 

 on the line 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 water, upon the same terms as those 

 who have purchased their land of the corpo- 

 ration." 



Sections 1 and 3 of Article XIV of the Con- 

 stitution of 1879 are as follows: 



Section 1. The use of all water now appro- 

 priated or that may hereafter be appropriated,, 

 for sale, rental or distribution, is hereby declared 

 to be a public use, and subject to the regulation 

 and control of the State, in the manner to be 

 prescribed by law; provided, that the rates of 

 recompensation to be collected by any person, 

 company or corpo ation in this State for the use 

 of water supplied to any city and county, or 

 city or town, or the inhabitants thereof, shall be 

 fixed, annually, by the Board of Supervisors, or 

 city or county, or city or town council, or other 

 governing body of such city and county, or city 

 or town, by ordinance or otherwise, in the man- 

 ner that other ordinances or legislative acts or 

 resolutions are passed by such body, and shall 

 continue in force for one year, and no longer. 

 Such ordinance or resolutions shall be passed 

 in the month of February of each year, and take 

 effect on the 1st day of July thereafter. Any 

 board or body failing to pass the necessary ordi- 

 nances or resolutions fixing water rates, where 

 necessary, within such time, shall be subject to 

 peremptory process to compel action at the suit 

 of any party interested, and shall be liable to 

 such further processes and penalties as the 

 Legislature may prescribe. Any person, com- 

 pany, or corporation collecting water rates in 

 any city and county, or city or town in this 

 State, otherwise than as so established, shall 

 forfeit the franchises and waterworks of such 

 person, company, or corporation to the city and 



