Myrick, J., concurring: I concur in the judgment, for the reason herein stated:
The petitioner Price applied to the Court below for a writ of mandate compelling the respondent, the Riverside Land and Irrigating Company,'at all times, upon demand, to furnish to him, his heirs, successors, or assigns, such quantity of water from the (so-called) upper ditch as may be required for irrigation, domestic, and other useful or beneficial purposes, upon his premises, at the rates of: for a two-and-onc-half-inch stream, thirty-six dollars per year; for a five-inch stream, sixty dollars per year, and in the same proportion; for a domestic stream, twenty dollars per year; for extra water, two and one-half cents per inch per day of twelve hours, and four cents per inch per day of twenty-four hours, and that no distinction be made in the rates, price, and terms for furnishing him water, and for furnishing any other parties; and that he recover six hundred dollars dam[437]ages and his costs. The defendant demurred, and the demurrer was overruled.
Upon the issues tendered by the answer, testimony of the respective parties was heard by the Court, and findings were filed in substance as follows :
That the Southern California Colony Association was formed and incorporated September 14th, 1870, for the purpose of settling a colony of people in San Bernardino County, and of acquiring and furnishing lands and town sites for the settlement of said colony, and of buying, holding, selling, conveying, renting, leasing, and dealing in lands generally, for the purpose of appropriating all the unappropriated water of the Santa Ana river by separate ditches, and conveying it upon the lands in sixteen specified townships, and using or furnishing and selling the same to the people of said town and colony, and others in the townships named, for irrigation, domestic use, milling, manufacturing, water power, and mining purposes, and conveying said water in ditches, sluices, acqueducts, and water-pipes, as utility and convenience may require; for the purpose of furnishing to said colonists, and others settling in the said locality, lumber, .brick, lime, marble, granite, and all other materials for building | also, seed grain, and other seed, and young trees and shrubs for planting; and for the purpose of doing generally whatever shall be found needful for the welfare and advantage of said colony. That, prior to the transfer, the Southern California Colony Association diverted and appropriated from said river about 1,500 inches of water, and by means of canals and flumes (called the upper ditch), conducted a constant flow of water of- the amount aforesaid upon the lands above mentioned, to a point at the line between its land and the public land; and in 1875, the respondent, by means of a continuation of said upper ditch, and in pursuance of the objects and purposes aforesaid of respondent and of said Southern California Colony Association, conducted said stream farther on, and past the premises of petitioner; that in 1871, by agreement between the Southern California Colony Association and the settlers on the Government land (among whom was Travers, petitioner’s grantor), said settlers were to have water from the ditch at the same rates at which it was sold to other customers, [438]and the same as sold to parties who had purchased lands, of the Association, but the settlers were to construct their own distributing ditches, connecting with the main ditch, which was then completed to within half a mile of the Government lands, and partially constructed a half-mile into the Government lands. That, in pursuance of such agreement, said Travers, with another claimant, constructed a ditch nearly a mile in length, connecting with the main ditch, and running upon the lands of Travers and the other claimant. That in 1875, under permission from Travers, the Riverside Land and Irrigating Company, having acquired the property of the Southern California Colony Association, enlarged said ditch, and put gates in to accommodate and irrigate said Travers’s claim. After petitioner had purchased forty acres of Travers’s claim, the Riverside Land and Irrigating Company put a gate upon said ditch especially to irrigate petitioner’s claim. That after the enlargement of the ditch, it was understood between the settlers and the company that the company was to have the control and management of all their distributing ditches so constructed by them, in order to facilitate its business of distributing and supplying said settlers with water. That after the construction of the Travers ditch, the Southern California Colony Association and the Riverside Land and Irrigating Company, during the time of their respective ownership, furnished to Travers, through said ditch upon his land, all the water required by him to irrigate the same and for domestic use, and also to the other settlers on the Government lands, at its regular rates, and upon the same terms and conditions as it furnished water to purchasers of its own lands; and after petitioner’s purchase of Travers, the Riverside Land and Irrigating Company in the same manner furnished water to petitioner until April, 1877, when he demanded a further supply of two and one-half inches of water, which he required on his place in order to plant fruit-trees, grape-vines, and alfalfa, for which he offered to pay the regular rates; but the Riverside Land and Irrigating Company refused to furnish such additional supply, and would supply only to the extent that he had theretofore used on his premises, and refused any water for new and additional improvements, whereby he was prevented [439]from planting fruit-trees, grape-vines, and alfalfa, and has thereby suffered damage three hundred dollars. That the settlers on the Government land, including Travers, settled thereon upon the faith and belief of being supplied with water from the company’s ditch, and there is no other' supply; that the lands are within the flow of the ditch, and can be readily irrigated therefrom. That there was talk among the settlers in regard to conveying to the Southern California Colony Association, in consideration of a water right in said ditch, one-half of their claims, but the settlers disagreed among themselves, and .no agreement was made; they neither had nor have. title to the land, though they were qualified pre-emptors, and occupied the land as such. The Southern California Colony Association, with knowledge of these facts, at all times furnished to the settlers, at its regular rates, all the water required by them on their respective tracts. Travers repudiated any pretended agreement, and claimed the right" to purchase water at the regular rates, and with full knowledge thereof he was furnished with water. That petitioner bought his land on the faith of being supplied, at the regular rates, with water for his lands, and at the time of purchase had no notice of said pretended agreement. That the rates as stated in the petition are true. That there has been at all times, and is, water sufficient running in said main ditch to supply all parties occupying lands within the flow of the ditch; and all parties occupying lands within any of the tracts set forth in the articles of incorporation of the Southern California Colony Association, and the Riverside Land and Irrigating Company, has at all times had in both and each of its ditches more than sufficient water to irrigate lands occupied by parties, and within the flow of said ditches respectively; but neither the Southern California Colony Association nor the Riverside Land and Irrigating Company have ever had flowing sufficient water to irrigate the irrigable lands within the flow of its ditches and owned by it. A large portion of lands owned by said corporations are unoccupied and uncultivated.
Upon the findings, judgment went for petitioner, as prayed for, and for §300 damages and for costs.
This judgment should be reversed, for want of findings suffi[440]ciently definite upon some points; such as, how much water had been used upon petitioner’s land by the consent of the corporation prior to April 3rd, 1876, for error as to the quantity of water to which petitioner is entitled, and for error in giving the judgment for damages. It seems to me quite too speculative to give damages resulting from being prevented from planting fruit-trees and grape-vines.
The right of the corporations mentioned in this case to appropriate the waters of Santa Ana river for the purposes indicated, is based upon the laws of this State; therefore,the corporation, in appropriating and using the water, must be governed by such laws. The right of petitioner to be supplied with water by the corporation is also based upon the laws of this State. Section 552, Civil Code, is the only section to which attention has been called which furnishes a rule by which the rights and duties of the parties to this controversy are to be determined. 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 ivater 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.”
In my opinion, under that section, the water conveyed by the ditches of the corporation is to be distributed, and persons have the right to be furnished by it with water, in the following order :
1. Persons who, on or before April 3rd, 1876, purchased land from the corporation (either the Southern California Colony Association or the Riverside Land and Irrigating Company), and were furnished by it with water for the irrigation of the land so purchased, have the right to have the supply of water continued in the same quantity (if it can be done without interfering with the right of any other in the same condi[441]iion), and such right remains a perpetual easement running with the land.
2. If any person, on or before April 3rd, 1876, cultivated land within the flow of the ditches, and was furnished by the corporation with water for irrigation, such person and his grantees are entitled to have the same quantity of water continued for irrigating the same land, on the same terms as those who have purchased land of the corporation, regard being had to the rights of others in the same condition.
3. Persons who purchased land of the-corporation on or before April 3rd, 1876, have the right to be furnished by the corporation with water sufficient to irrigate the land so purchased (regard being had to others in the same condition), and such right remains a perpetual casement running with the land.
4. Persons who have purchased, or shall purchase, land of the corporation subsequent to April 3rd, 1876, have the right to be supplied by the corporation with sufficient water to irrigate the land so purchased; and such right remains a perpetual easement running with the land; such rights to date in order of purchase,
5. All other persons applying (to the reasonable capacity of the ditches) upon the terms and at the rates which are or may be established bylaw; the rights to date in order of application.
It will be observed, that the date of the taking effect of § 552 is a starting point from which to regard the rights of all parties. Persons purchasing land of the corporation before that date have a, right superior to all others to the quantity of water with which they had been supplied. Next in order come persons owning outside lands, who have been actually supplied with water; and to the amount of such supply, the corporation cannot arbitrarily cut them off. They, however, have not the right of additional supply to the detriment of the first purchasers of land theretofore untilled. Neither have they the right to increase their demands to the detriment of the subsequent purchasers of lands from the corporation. By the terms of the section (see first clause) all persons purchasing land of the corporation are to have the right to be supplied with water ; and it remains a perpetual easement to the land. If an outside owner, who on April 3rd, 1876, had but five inches of rvater, [442]could increase the amount without regard to subsequent vendees, the latter might not enjoy the right of a perpetual easement—there might be no water to flow—it might have been all taken by outside owners.
It is for the Legislature to fix, under the Constitution, the rights, powers, and duties of corporations; and in the section above quoted, the Legislature has seen fit to give purchasers of lands from a corporation the right to have it continue furnishing water to them, such right to he a perpetual easement. As against such purchasers, other parties have, under that section, a right to be supplied only to the amount which may have been furnished. The question as to which would be the wisest, to give purchasers from the corporation a preference, or to compel the corporation to furnish to all applicants indiscriminately, is for the Legislature to determine.
[Mr. Justice Boss, being disqualified, took no part in this decision.]