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TITLE VIII.

WATER AND CANAL CORPORATIONS.

§ 548. Corporation may obtain contract to supply city or town.

549. Water corporations, duties, etc.-Rates. $ 550. Right to use streets, ways, alleys, and roads. $ 551. To build and keep bridges in repair. § 552. Right of purchaser to use water for irrigating.

CORPORATION MAY OBTAIN CONTRACT TO SUPPLY CITY OR

TOWN. Sec. 548, C. C. No corporation formed to supply any city, city and county, or town with water must do so unless previously authorized by an ordinance of the authorities thereof, or unless it is done in conformity with a contract entered into between the city, city and county, or town and the corporation. Contracts so made are valid and binding in law, but do not take from the city, city and county, or town the right to regulate the rates for water, nor must any exclusive right be granted. No contract or grant must be made for a term exceeding fifty years. En. March 21, 1872.

Water rights: See sec. 1410 et seq., C. C.

Legislative History.

Section 3 of the water companies' act of 1852, page 171, is the basis of this section.

WATER CORPORATIONS, DUTIES, ETC.-RATES.

Sec. 549, C. C. All corporations formed to supply water to cities or towns must furnish pure fresh water to the inhabitants thereof, for family uses, so long as the supply permits, at reasonable rates and without distinction of persons, upon proper demand therefor; and must furnish water to the extent of their means, in case of fire or other great necessity, free of charge. The rates to be charged for water must be determined by commissioners, to be selected as follows: two by the city and county or city or town authorities, or, when there are no city or town authorities, by the board of supervisors of the county, and two by the water company; and in case a majority cannot agree to the valuation, the four commissioners must chose a fifth commissioner; if they cannot agree upon a fifth, then the county judge of the county must appoint such fifth person. The decision of the majority of the commissioners shall determine the rates to be charged for water for one year, and until new rates are established. The board of supervisors, or the proper city or town authorities, may prescribe proper rules relating to the delivery of water, not inconsistent with the laws of the state. En. March 21, 1872. Amd. 1873-74, 216.

Water rates: See art. XIV, Const., ante, and the following acts: Act approved March 26, 1880, page 16; act approved March 7, 1881, page 34; and act approved March 12, 1885, page 95, all found in the Appendix, under title “Water Companies.”

Legislative History.

Section 4 of the water companies' act of 1858, page 219, is the basis of this section. The original section has not the words "or when there are no city or town authorities, by the board of supervisors of the county,” and had the word “they" instead of the words "a nrajority.

Section Cited.

S. V. W. W. v. Bryant, 52 Cal. 134, 141.

Annotation.

Generally.- Held, prior to the code, a water company is a corporation for the purpose of engaging in any species of trade within the meaning of the corporation act of 1853. (Heyneman v. Blake, 19 ('al. 579.)

Right of Eminent Domain.-A corporation organized under the laws of this state for the purpose of supplying the inhabitants of a town with water is authorized to exercise the right of eminent domain in hehalf of such use. (St. Helena Water Co. v. Forbes, 62 Cal. 182, 45 Am Rep. 659. To same effect: Lux v. Haggin, 69 Cal. 300, 10 Pac. 674.)

But statutory proceedings under eminent domain cannot be resorted to to obtain rights already acquired by another party. (S. F. Water Co. v. Alameda Water Co., 36 Cal. 639.)

In a proceeding to condemn land, instituted in 1862, by the plaintiff, a water company incorporated under the act of 1858, it was held that the procedure prescribed by sections 27-29 of the railroad act

Corporation Laws—26

of 1853, should be followed, and not those of the act of 1861-that those sections are substantially incorporated in the water company act of 1858, and remained a part of the latter, notwithstanding a repeal of the original act. (S. V. W. W. v. San Francisco, 22 Cal. 434.)

Supplying Water.- A water company is liable in an action for damages for breach of its contract to furnish water as agreed, where it is established that it completed its flumes and ditches to and beyond the point at which it agreed to deliver it, and that, in the exercise of reasonable diligence it could have delivered the water, and failed to do so. It is no defense that an injunction was pending preventing it from diverting sufficient water to supply its customers. (Sample v. Fresno Flume Company, 129 Cal. 222, 61 Pac. 1085.)

But a board of supervisors has no power, under section 1, article 14, of the Constitution, or the act of March 12, 1885, to fix the water rates of a corporation which acquires and holds water solely for the use of its stockholders, and not of the general public, and which does not rent, sell, or use its water in any way so as to accumulate a fund for payment of dividends. (McFadden v. Board of Supervisors, 74 Cal. 571, 16 Pac. 397.)

Generally, a water company is impressed with a public trust requiring the delivery of water, to those entitled to demand the same when sufficient for the demand. (Price v. Riverside L. & I. Co., 56 Cal. 431; S. V. W. W. v. Board of Supervisors, 61 Cal. 3; S. V. W. W. v. Board of Supervisors, 61 Cal. 18.)

Mandamus is the remedy to enforce this duty. (Price v. L. & L Co., 56 Cal. 431.)

Where the act under which a water company is incorporated requires the company to supply water for municipal purposes "free of charge,” a contract subsequently entered into with a city, providing for a compensation, is void. (San Diego Water Co. v. San Diego, 59 Cal. 517.)

The power to charge tolls or rates for water is a franchise conferred upon corporations formed under general laws, and can be exercised only in manner provided for in those laws. (S. V. W. W. v. Bryant, 52 Cal. 132.)

RIGHT TO USE STREETS, WAYS, ALLEYS, AND ROADS.

Sec. 550, C. C. Any corporation created under the provisions of this part, for the purposes named in this title, subject to the reasonable direction of the board of supervisors, or city or town authorities, as to the mode and manner of using such right of way, may use so much of the streets, ways, and alleys in any town, city, or city and county, or any public road therein, as may be necessary for laying pipes for conducting water into any such town, city, or city and county, or through or into any part thereof. En. March 21, 1872.

See sec. 19, art. XI, Const., ante.

Legislative History.

Section 5 of the water companies' act of 1858, page 220, is the basis of this section.

TO BUILD AND KEEP BRIDGES IN REPAIR.

Sec. 551, C. C. Every water or canal corporation must construct and keep in good repair, at all times, for public use, across their canal, flume, or water pipe, all of the bridges that the board of supervisors of the county in which canal is situated may require, the bridges being on the lines of public highways and necessary for public uses in connection with such highways; and all waterworks must be so laid and constructed as not to obstruct public highways. En. March 21, 1872.

See the earlier acts upon canal and ditch corporations: Act May 14, 1862, Stats. 1862, 541; and the subsequent act, April 2, 1870, Stats. 1870, 660. See, also, Statutes at Large, title “Water Commissioners.''

Act March 30, 1872, relative to formation of canal and ditch corporations, Stats. 1871-72, p. 733.

Legislative History.

Section 4 of the canal act of 1862, page 541, is the basis of this section,

Section Cited.

County of Fresno v. Canal Co., 68 Cal. 359, 9 Pac. 309; Fresno v. Fresno C. & I. Co., 98 Cal. 183, 32 Pac. 943.

Annotation.

Construction of Bridges. This section has not been repealed by section 2737 of the Political Code, as amended in 1883 (Stats. 1883, p. 17), authorizing the road overseer to construct bridges across all ditehes that intersect public highways, upon the neglect of the persods excavating the ditches so to do. Mandamus will lie to enforce this duty. (Fresno County v. Canal Co., 68 Cal. 359, 9 Pac. 309. Cited: Fresno v. Fresno ete. Co., 98 Cal. 183, 32 Pac. 943. Note citation: 37 Am. St. Rep. 319.)

Construction of Section. This section is held to recognize ditehes and canals as of public use, and regulate such use. (Fresno 5. Fresno C. & I. Co., 98 Cal. 183, 32 Pac. 943.)

RIGHT OF PURCHASER TO USE WATER FOR IRRIGATING.

Sec. 552, C. C. 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 corporation. En. Stats. 1875-76, 77.

Act regulating sale, rental, and distribution of appropriated water: See post, Statutes at Large, title “Water Companies."

Irrigation, statutes relating to: See Statutes at Large, title “Irrigation."

Section Cited.

Price v. Riverside L. & I. Co., 56 Cal. 440, 441, in concurring opinion of Myrick, J.; Dorris v. Sullivan, 90 Cal. 286, 27 Pac. 216; Merrill v. Southside Irrigation Co., 112 Cal. 434, 435, 44 Pac. 720; Fresno Canal Co. v. Park, 129 Cal. 448, 62 Pac. 87; Crow v. San Joaquin etc. Irr. Co., 130 Cal. 313, 62 Pac. 562, 1058.

Annotation.

Construction of Section-Priority.-In his concurring opinion, My. rick, J., classified those entitled to be furnished water as follows:

1. Persons who purchase lands from the corporation; and are furnished water by the company for the irrigation of such lands.

2. Persons who own lands within the flow of the ditches, and were furnished by the corporation with water for irrigating such lands.

3. All other persons applying upon the terms and at the rates which are or may be established by law.

By the terms of the section, all persons purchasing land of the corporation are to have the right to be supplied with water; and it

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