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be copied. It may be epitomized as follows: 1. Defendant was organized for handling the sewerage water of Los Angeles, and so much other water as it was able to obtain, and to carry out the project constructed a pipe capable of carrying four hundred and fifty inches along the line selected; 2. It only secured one hundred and eighty inches, and was able to procure no more, except occasionally; 3. That it has been selling and distributing this one hundred and eighty inches to people along the line of pipe, to persons who needed it for irrigation and could not have supplied plaintiff without refusing others; 4. It will be the same in the future; 5. The land along defendant's pipe line needs four hundred and fifty inches of water in the irrigating season; 6. Los Angeles is engaged in the construction of a system of sewerage which defendant believes will be completed within six months, when defendant is informed and believes the city intends to resume control of the one hundred and eighty inches of sewerage water which it now supplies to it, and defendant is advised the city has a right so to do, notwithstanding its contract with defendant, and, should it do so,defendant would have no water for distribution. As to future deprivation of water, it is sufficient to say that, if the time arrives when it has no water, that fact will be an answer to any demand therefor under the judgment in this case.

The residue of the paragraph is covered by the findings of the court upon the subject, to the effect that defendant has water which it was accustomed to furnish to the plaintiff, but which it took from her and sold to others.

If these facts do not render defendant liable, then this judgment is erroneous, and should be reversed.

Do the facts, as found, warrant the relief asked and granted in the judgment?

"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 regulation and control of the state, in the manner to be prescribed by law." (Const., art. XIV, sec. 1.) Appellant contends that the word "appropriated," as used in the section of the constitution quoted above, only applies to water appropriated from streams upon the public lands, and has no application to water acquired by other means than an appropriation under the Civil Code.

This construction is too narrow, and, we think, does violence to the evident intent of the framers of the constitution.

There is no doubt but that in a broad sense to appropriate is to make one's own, to make it a subject of property, and it is often used in the sense of denoting the acquisition of property, and a right of exclusive enjoyment in those things which before were without an owner, or were publici juris.

But it is also used in the sense of prescribing property or money to a particular use, as to appropriate money to a designated purpose; to appropriate land to grazing, or fruit, or other purpose. It is also used in the sense of "to distribute." (Anderson's Law Dictionary.)

When water is designated, set apart, and devoted to purposes of sale, rental, or distribution, it is appropriated to those uses, or some of them, and becomes subject to the public use declared by the constitution, without reference to the mode of its acquisition.

A perusal of the latter part of section 1, from which we have quoted, will show that in all cities and counties, or cities or towns of this state, it is made the duty of the governing bodies thereof to prescribe, by ordinance or otherwise, the rates to be charged for water supplied to such cities, etc. This is general, and applies to all parties supplying water, and not merely to those who have acquired the ownership thereof by appropriation of water upon the public lands.

The evident intent of the framers of our constitution

CXII. CAL.-28

was to strike a blow at the monopolies which had grown up out of the sale, rental, and distribution of water, and by declaring such use a public use to bring it within. the control of the local authorities in municipalities where the burdens of the system were most onerous.

To have made these provisions applicable only to the distributors of water acquired in a given manner, and not otherwise, would have defeated, in most instances, the paramount object in view.

It is apparent that in most of the cases in which this court has applied the doctrine enunciated in the constitution the water which constituted the subject matter in question was not the fruit of an appropriation in the sense contended for by appellant. (See McCrary v. Beaudry, 67 Cal. 120; Price v. Riverside etc. Co., supra; Fresno v. Fresno etc. Co., 98 Cal. 179; People v. Stephens, 62 Cal. 209.)

Counsel for appellant further contends that section 552 of the Civil Code, which, under the facts of this case, was evidently relied upon by the court below as establishing the duty of defendant to furnish water to plaintiff, is not applicable. That section reads 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 corporation."

The contention is that the section only applies to cases in which the corporation has sold and furnished water to irrigate, and that, as it does not appear that the corporation defendant has sold any land to anyone, it is

not one of the corporations specified in section 552 of the Civil Code.

Title VIII, of which this section is a part, relates to water and canal corporations, and must be read with reference to the subject matter under treatment.

The section in question contains two distinct clauses applicable to this class of corporations, viz., to those organized under the laws of this state.

The first clause relates to those cases in which the corporation furnishes water to irrigate land which it has sold, and it must continue to furnish such water to the land thus sold at the established rate.

The second clause involves an independent proposition, and makes it the duty of such corporationswater and canal corporations-organized under the laws of the state, to continue to furnish water to those within the flow and on the line of their ditches, who are cultivating land which has been furnished with water for irrigation, and the latter are entitled to the continued use of water so supplied upon the same terms as those mentioned in the first clause of the section, "at such rates and terms as may be established by said corporation in pursuance of law."

The object of the statute is quite evident. Water for irrigation is, in many pursuits, essential to the productiveness of land, and if, when it has been once furnished, the company so supplying it for such purpose may at will refuse such supply, the owner of irrigated land is at the mercy of the corporation who may ruthlessly destroy the crops of the season, or in case of orchards. and vineyards the result of many seasons' industry, by refusing to continue the supply of water.

The use being a public use, the legislature may regulate it so as to promote the interests of the public and, at the same time do no injustice to the water company.

The defendant, having supplied plaintiff with water for irrigation, and having sufficient on hand to continue such supply, was not at liberty without good cause to

refuse to supply her, while she, on her part, was ready and willing to pay the established price therefor.

We recommend that the judgment and order appealed from be affirmed.

HAYNES, C., and VANCLIEF, C., concurred.

For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.

HARRISON, J., GAROUTTE, J., VAN FLEET, J.

[No. 15,202. In Bank.-April 15, 1896.]

SANTA ROSA CITY RAILROAD, APPELLANT, v. CENTRAL STREET RAILWAY COMPANY, RESPOND

ENT.

APPEAL-DISAGREEMENT OF JUDGES-AFFIRMANCE OF JUDGMENT.-Where one of the justices of the supreme court is disqualified and the remaining justices are equally divided in opinion and there is no probability of an immediate change in the personnel of the court, the judgment of the lower court must be affirmed.

APPEAL from a judgment of the Superior Court of Sonoma County. S. K. DOUGHERTY, Judge.

The facts are stated in the opinion of the court rendered upon the former hearing in Bank reported in 38 Pac. Rep. 986, and in the present opinion of the court upon rehearing.

Barham, & Bolton, Van R. Paterson, and Freeman & Bates, for Appellant.

W. F. Russell, and Rutledge & Pressley, for Respondent.

THE COURT. In this cause it is impossible for a majority of the court to arrive at a conclusion upon the merits of the case, for the reason that the chief justice is disqualified, and, of the six associates, Justices Van Fleet, Garoutte, and McFarland think that the judg

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