for the immediate benefit of its stockholders, | 1885 (Stats. 1885, p. 95), to fix rates as for a with no direct specific public purpose in view, public use, or at all. The proposition that as in the case of a railroad or turnpike or such a use of the water is not a public use canal company. The only interest the public was again affirmed in McDermont v. Anahas in the continuance of the business is the heim U. W. Co., 124 Cal. 114, 56 Pac. 779, remote, general interest, which it has in the and in Barton v. Riverside W. Co., 155 Cal. proper development of the resources of the 518, 101 Pac. 790, 23 L. R. A. (N. S.) 331. country”—in effect, that its property was not In Leavitt v. Lassen I. Co., 157 Cal. 83, 106 devoted to public use. In Price v. Riverside, Pac. 404, 29 L. R. A. (N. S.) 213, the water 56 Cal. 432, it is said that every corporation had been appropriated for sale, rental, and formed under the act of 1862 (St. 1862, p. distribution, the system had been in opera540), "has impressed upon it a public trust- tion several years, and it was conceded to be the duty of furnishing water, if water it has, a public use. It was held that the purveyor to all those who come within the class or of the public use cannot make binding concommunity for whose alleged benefit it has tracts to deliver to a landowner under the been created." In McCrary v. Beaudry, 67 system more than his proportionate share of Cal. 120, 7 Pac. 264, it was decided that wa- the water, or give him a preferential right ter conducted through pipes laid in the over others, nor make any unfair discriminastreets by permission of the city of Los An- tion between the beneficiaries of the use. geles, and supplied by the owner to residences along those streets at fixed rates, was devoted to a public use, and that residents along such streets who had received the water were entitled to have the service continued on paying the rates. In Merrill v. South Side I. Co., 112 Cal. 426, 44 Pac. 720, the defendant company was engaged in selling, distributing, and delivering water for irrigation upon the lands along the line of its pipe. Plaintiff's land was along said pipe line, and defendant had sold plaintiff water to irrigate the same, but refused to continue to do so and extended its pipes to new lands to which it delivered the water previously supplied to plaintiffs. It was held that this was a public use for the lands along the pipe line, and that mandamus would lie to compel a continuance of the supply to the plaintiff. In Hildredth v. Montecito C. W. Co., 139 Cal. 29, 72 Pac. 395, it was held that, if the owners of several distinct water rights in a stream should form a corporation and give to it the duty of diverting and distributing the water to the respective persons entitled, such water was not thereby devoted to a public use. The court said that: "The right of an individual to a public use of water is in the nature of a public right possessed by reason of his status as a person of the class for whose benefit the water was appropriated or dedicated. All who enter the class may demand the use of the water, regardless of whether they have previously enjoyed it or not." In McFadden v. Los Angeles, 74 Cal. 571, 16 Pac. 397, a corporation had acquired water to be used on the land of its stockholders only, and at rates fixed by the corporation. It was not appropriated or offered for sale to others, or to the public generally, but the stockholders were very numerous and the corporation supplied water for some 12,000 acres of land. It was declared not to be a public use; the court saying: "We know of no reason why individuals cannot associate themselves together, take on a corporate form, and acquire water to be used on their own lands"-and that in such a case the supervisors had no power, under the act of

Under the doctrines thus established, it is evident that the California Development Company has not dedicated to public use the water which it diverts from the Colorado river, and that it has not offered it for sale, rental, or distribution in such a manner as to constitute a public use thereof. In its notice of appropriation, it declared that it claimed the water for itself and others. It did not claim it for use by the public, nor designate the "others" to whom it was to be. furnished. The notice stated that the water was claimed for the purpose of developing power, and for the irrigation of lands in the "New River Country," situated in what was then San Diego county, but it did not say that it was to be used upon all said lands, nor generally upon the lands in said country. Upon each of these essential elements of a public use, the most that can be said is that the notice is silent. There never was any declaration by that company that the water was to be devoted to public use, or that it was to be offered generally for sale in California, or to all landowners in the New River Country, or in any district or part thereof, or even to all landowners along the lines of its ditches or the ditches of its auxiliary companies. No such offer or declaration has ever been made, nor has it ever been the custom or practice of the company or of its auxiliary companies to sell water in that way. The method adopted by it for the disposition of the water, and its conduct in distributing the same, have been wholly inconsistent with the idea that the water was held out for general sale or distribution, and it has been consistent only with the theory that the intention was to retain control of the water to the extent, at least, of choosing for itself the persons and corporations to whom it should be sold or delivered, and the terms and conditions on which such sales or deliveries should be made. It has, in fact, retained such control, and it has not disposed of the water otherwise than according to this plan. For this purpose it laid out seven separate districts in the New River Country, with distinct boundaries. In each of these it organized a pri

vate water corporation. The purpose of each | strictions fixed by the respective contracts, corporation, as expressed in its articles, was and that those companies have not applied to procure water for the irrigation of such the water to public use, but have held the lands situated within the exterior limits of same exclusively for their respective sharethe district as should belong to its stockhold- holders upon terms fixed by the by-laws of ers, and to no other persons. Each share of the company. It appears that the Mexican the stock was to be located upon certain des- Company is selling a part of the water to ignated lands-one share being allotted to consumers in Mexico along its line. This each acre-and the water was to be appor- does not change the result. It does not aptioned ratably among the stockholders ac- pear that this water is sold or offered to cording to the number of shares owned. The the public generally, or to all landowners stock was not free, but was to be sold at a along the line. Even if it were so, the fact fixed price. To these corporations, and to no that this company is carrying on a public other persons, the Development Company use in Mexico would not affect the character sold the water it diverted, receiving therefor of the service of the other companies doing certain shares of stock of said corporations, business in California. It is very clear from with the right to sell the same and have all the proceedings taken that the Developthem located on lands in the district by the ment Company not only did not intend to purchasers, and with an agreement by each engage in a public service, but that it was auxiliary company to pay thereafter an annu- well advised concerning such service, and al charge of 50 cents per acre foot for the wa- carefully devised its plan and drew its conter delivered to it. There were other restric- tracts to avoid being placed in that position. tions which it is not necessary to mention. The company has placed itself clearly within The Development Company sold the stock of the principles stated in McFadden v. Los these auxiliary companies to the landowners Angeles, supra, McDermont v. Anaheim Co. within the respective districts, and the same supra, and Barton v. Riverside, supra, under has been located by the respective companies which the use which it makes of the water upon particular tracts of land therein. No is not a public use. water has ever been sold or distributed, or offered for sale or distribution, in any other way, or to any other persons, except small quantities furnished by special agreement to a power company and to the city of Imperial. No right in any other person to demand or receive water upon any terms or at all has ever been recognized, allowed, or conceded either by the Development Company or any of the auxiliary companies. It appears, there fore, that the Development Company has always, either directly or through the auxiliary companies, selected the persons to whom it would sell and distribute the water and fixed its own prices. A use thus restricted, limited, and controlled by the owner is in no proper sense, according to the foregoing authorities, a public use.

[6] The plaintiff claims, however, that, notwithstanding these decisions and the wellestablished meaning of the phrase "public use," as shown by the other decisions cited, the meaning of the phrase is defined in section 1 of article 14 of the Constitution in terms which necessarily creates a public use whenever any water is sold or distributed, regardless of the number of persons to whom it is delivered, the manner or character of the disposition made of it, or of the transfer of the right thereto. The part of the section defining the phrase is as follows: "The use of all water now appropriated, or that may hereafter be appropriated for sale, rental, or distribution, is hereby declared to be a public use, and subject to the regula[5] We have hitherto considered the case tion and control of the state, in the manner upon the theory that all the other corpora- to be prescribed by law." The remainder tions mentioned, including the Mexican Com- of the section provides for the fixing of rates pany, are but subsidiary to and agents of for the use of water in municipalities. Secthe California Development Company for the tion 2 declares that the right to collect rates carrying out of its plan for the distribution for water supplied to a county, city, and of its water. The effect is the same, how-county or town, or the inhabitants thereof, ever, if those companies should become, or is a franchise to be exercised only under and be considered, independent companies-that as prescribed by law. is, merely purchasers of the Development In Merrill v. Southside I. Co., supra, it Company's water. It is true that, since their was held that the word "appropriation," in organization, the districts, by reason of the section 1 aforesaid, does not refer to the sales of their corporation stock to the land- act by which the water is acquired, as the owners, have become independent, so far as taking from the stream, for example, but management is concerned, of the Develop- to the act or acts by which it is designated, ment Company, although still bound by the set apart, and devoted to the purposes of contracts made between them. But if they sale, rental, or distribution. According to are viewed as independent companies, the the theory of the plaintiff in this case, whenfact remains that the Development Company ever the owner of a water supply determines has not sold, or proposed to sell, or disposed to and does sell it for a price agreed on beof its water at all, except to those companies tween himself and the purchasers, it imme

any other person to whom it can be conven- | matter of private contract, and it shows no iently distributed in the same manner would intent to create a public use. It has also have the right to a proportionate share of been a frequent practice to effect the same the water on the same terms as the purchas- general purpose by forming a corporation to ers; and, if the supply is limited, the first hold the water supply and to issue stock at purchasers must divide with all others who a fixed price entitling the holder to a share may come in and claim a share. Under that of the water at a fixed annual rate, thus theory, where a person having a surplus of making the stockholders themselves the indiwater parts with a portion of it by sales to rect owners of the water. Many decisions others, he thereby appropriates such portion of this court in various ways concern corto purposes of sale and dedicates it to pub-porations of this character. Among them are lic use. This application of the section the following: Richey v. East R. W. Co., would destroy private rights in water and 141 Cal. 221, 74 Pac. 754; Estate of Thomas, convert every sale thereof into a dedication 147 Cal. 236, 81 Pac. 539; Southside I. Co. to public use. We do not believe that the v. Burson, 147 Cal. 406, 81 Pac. 1107; Mabb Constitution was intended to have such ef- v. Stewart, 133 Cal. 556, 65 Pac. 1085; s. c., fect, or that is should be so construed. Ar- 147 Cal. 417, 81 Pac. 1073; Curtin v. Article 14, taken as a whole, shows plainly that royo, etc., Co., 147 Cal. 338, 81 Pac. 982; it was intended to regulate the use of water Arroyo, etc., Co. v. Bequette, 149 Cal. 546, appropriated and dedicated generally for sale 87 Pac. 10; Fuller v. Azua I. Co., 138 Cal. and distribution among an indefinite number 204, 71 Pac. 98; Spurgeon v. Santa Ana, of users. It could not have been intended to etc., Co., 120 Cal. 71, 52 Pac. 140, 39 L. R. declare that a single sale of a part of his A. 701; Hewitt v. Irr. Dist., 124 Cal. 186, water by one having more than he needs 56 Pac. 893; Goodell v. Verdugo, etc., Co., would convert the use into a public use in 138 Cal. 310, 71 Pac. 354; Barton v. Riverwhich others could share. If a single sale side W. Co., supra; Miller v. Imperial W. could not do this, other sales of like charac- Co., 156 Cal. 27, 103 Pac. 227, 24 L. R. A. ter would not accomplish it. The section (N. S.) 372. In none of them is there any must be understood to apply to cases where suggestion that such disposition or distribuone has appropriated water generally for tion constitutes a public use. This method sale, rental, or distribution, and not to cases became so prevalent and so satisfactory that where sales are made to particular persons in 1895 section 324 of the Civil Code was at a fixed price by ordinary contracts of amended so as to provide that, in such caspurchase and sale. To compel such a subdi- es, the by-laws might require the stock cervision and distribution of water supplies as tificates to describe the land to which the this construction would entail would destroy stockholders' share of water was to be apthe value of all water rights. In this state plied, and that such stock should thereupon the water supply is so small that large areas become appurtenant to such land. must go without irrigation entirely. Such water as there is must be applied, as far as it will go, in quantities sufficient to make the lands profitably productive. The principal benefit of irrigation comes from its use in growing vineyards and orchards. These re quire a large expenditure and a permanent water supply to make them profitable. those engaging in such enterprises know that they must be ready always to divide their water supply with those in the vicinity who may subsequently choose to engage therein, such enterprises would be discouraged, the development, growth, and progress of the state would be much retarded, and its productive capacity greatly decreased.

If

This provision of the Constitution has been in force 33 years. It has never been understood that it had the effect here contended for. There have been many instances in which the owners of large tracts of land have acquired water, conducted the same to the land, and sold and conveyed the land in small tracts to actual settlers with a proportionate share of the water appurtenant to the land, coupled with an agreement to continue the water supply at a fixed annual rate. Such a disposition is essentially a

This long-continued understanding and application of this section of the Constitution must be deemed to be a practical construction of it, contrary to the theory of plaintiff. It was not intended to declare that specific sales of water, or transfers thereof to a particular person or persons chosen at the will of the holder of the supply, or the distribution thereof by private corporations among their stockholders for an agreed price and at annual rates fixed by the corporation itself, should be considered a dedication thereof to public use. It would follow, as a matter of course, that neither the Development Company, nor either of the water companies organized by it, possesses the power of eminent domain. It is not asserted that either of them has ever claimed or attempted to exercise that power. The Mexican Company has received from the Mexican government a grant of that power. But the fact that that company is carrying on a public service in Mexico and has devoted some water to public use there does not affect the water carried into the United States nor the character of the use thereof in California. Nor is the fact that it is all derived from the same source of any importance. A part of

Dig. 88 613-623; Dec. Dig. § 253.*]
[Ed. Note. For other cases, see Trial, Cent.

6. TRIAL (§ 296*)-INSTRUCTIONS-REQUESTS
-OTHER INSTRUCTIONS.

Error in refusing defendant's instruction that damages to him from the plaintiff's having, as an architect, certified that defective work was properly done should be deducted from the value of plaintiff's services was not cured by an instruction that, in determining the reasonable value of plaintiff's services, the jury could consider defendant's damages from

BEATTY, C. J., does not participate in negligent inspection of the work by plaintiff;

gence was not directly relevant to the value | the contractor "in an unworkmanlike manof his services. ner and not in conformity with said specifications;" "failed to properly inspect or test said that the plaintiff negligently work," and negligently issued certificates, as architect, that said work was properly done, and that $4,279.59 was due the contractor therefor, and thereby caused the defendAction by Ralph W. Hart against C. Fant to accept said work and pay said sum; Buckley. From an order denying defend- and that the said work was not worth more ant's motion for a new trial, he appeals. than $1,500. Reversed.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes