142 



THE IRRIGATION AGE. 



county or city or town where the same are col- 

 lected, for public use. 



Sec. 2. The right to collect rates of compen- 

 sation for the use of water supplied to any 

 county, city and county, or town, or the inhabi- 

 tants thereof, is a franchise, and cannot be ex- 

 ercised except by authority of and in the man- 

 ner prescribed by law." 



Water Right The late case of San Diego 

 Charge Land and Town Company vs. 



Not Legal. City of National City decided 

 by this court and reported in 74 Fed. Hep., p. 

 79, presented the question, among others, 

 whether that company had the legal right to 

 demand and receive a sum of money, in addition 

 to the annual rates it was authorized to charge, 

 as a condition upon which it would furnish 

 water appropriated by it under the Constitution 

 3,nd laws of California, 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 it was by law 

 authorized to charge, it designated as a " water 

 right." In that case, this court said: " It 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 imposed for the purpose of reim- 

 bursing complainant in part for the outlay to 

 which it has been subjected. It is demanding 

 a sum of money for doing what the constitution 

 and laws of California authorized it to appro- 

 priate water within its limits, conferred upon it 

 the great power of eminent domain, and the 

 franchise to distribute and sell the water so 

 appropriated, not only to those needing it for 

 purposes of irrigation, but also to the cities and 

 towns, and their inhabitants, within its 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 per- 

 mitted the water in question to be appropriated 

 for distribution and sale, for purposes of irriga- 

 tion, and for domestic and other beneficial uses; 

 conferring upon the appropriator the great 

 powers mentioned and compensating it for its 

 outlay by the fixed annual rates. The com- 

 plainant 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, it accepted them charged 

 with the corresponding burden. Appropriat- 

 ing, as it did, the water in question for distri- 

 bution and sale, it thereupon became, accord- 

 ing to the express declaration of the Constitu- 

 tion, charged with a public use. ' Whenever,' 

 said the Supreme Court of California, in Mc- 

 Crary vs. Beaudry, (67 Cal., 120, 121, 7Pao. 264,) 

 4 water is appropriated for distribution and sale, 

 the public has a right to use it; that is, each 

 member of the community, by paying the rate 

 fixed for supplying it, has a right to use a 

 reasonable quantity of it in a reasonable man- , 

 ner. Water appropriated for distribution 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 it that he might have exercised if he had 

 never so appropriated it.' " 



A. Similar A similar question did arise in 

 Case the Supreme Court of Colorado 



in Colorado, in the case of Wheeler vs. 

 Northern Colorado Irrigating Company, (17 

 Pac. Rep., 487,) and was there dedided in pre- 

 cise accord with the ruling of this court in San 

 Diego Land, and Town Company vs. The City 

 of National City (supra.). The provisions of the 

 Constitution of Colorado were at the time the 

 case cited arose, as follows: 



" Sec. 5. The water of every natural stream 

 not heretofore appropriated within the State of 

 Colorado is hereby declared to be the property 

 of the public, and the same is dedicated to the 

 use of the people of the State, subject to ap- 

 propriation as hereinafter provided. 



Sec. 6. The right to divert unappropriated 

 waters of any natural stream to beneficial uses 

 shall never be denied. Priority of appropriation 

 shall give the better right as between those 

 using the water for the same purpose; but 

 when the waters of any natural stream are not 

 sufficient for the service of all those desiring 

 the use of the same, those using the water for 

 domestic purposes shall have the preference 

 over those claiming for any other purpose, and 

 those using the water for agricultural purposes 

 shall have preference over those using the same 

 for manufacturing purposes. 



" Sec. 7. All persons and corporations shall 

 have the right-of-way across public, private and 

 corporate lands for the construction of ditches, 

 canals and flumes for the purpose of conveying 

 water for domestic purposes, for irrigation of 

 agricultural lauds, and for mining and manu- 

 facturing purposes, and for drainage, upon pay- 

 ment of just compensation. 



" Sec. 8. The General Assembly shall pro- 

 vide by law that the Board of County Com- 

 missioners in their respective counties shall 

 have power, when application is made to them 

 by either party interested, to establish reason- 

 able maximum rates to be charged for the use 

 of water, whether furnished by individuals or 

 corporations." 



7) Ja - ft ^ n *^ e Colorado case, the plead- 

 /// n I * n & 8 8 h we( l the water company 

 to be a carrier and distributor of 

 water for irrigation and other purpos s, with a 

 canal upwards of sixty miles in length, and 

 capable of supplying water to irrigate a large 

 area of land. It had undisposed of a sufficient 

 quantity of water to supply the wants of the 

 relator, who was one of the land owners and con- 

 sumers under the canal, and who could obtain 

 water from no other source. He tendered the 

 amount of the annual rental fixed by the com- 

 pany, and demanded the use of water for the 

 current season, but the company demanded as 

 a condition precedent to the granting of his 

 request that he buy in advance "the right to 

 receive and use water" from its canals and pay 

 therefor $10 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 $100 per acre afterward, for a similar 

 so-called "water right." The Supreme Court 

 of Colorado held, as did this court in the case 

 referred to, the demand in addition to the 

 annual rates, for the so-called water right 



