CHAPTER 20.

RELATION OF CARRIER, CONSUMER AND PUBLIC. § 117. "Selling" and "Renting."

We have seen that according to the better reasoning and the weight of authority, (27) the ownership of the appropriation is in the consumer, who by his application of the water to a beneficial use, completes the appropriation, (28) It is, therefore, generally accepted and held, at least in Colorado, New Mexico and Arizona, that the company, by its diversion of the water from the natural stream and the carrying of the same in its canal, does not make nor own the appropriation. The company does, however, own the right to run or conduct through its canal, a certain quantity of water. (29) It can, therefore, readily be seen that the use of the terms "selling" and "renting" water is a misapplication. The company owning no appropriation has no water which it can "sell" or "rent." By the use of these terms, therefore, it is meant that the carrier sells to the consumer a right of way through its ditch or canal to run a specified quantity of water, or in other words, its carrying service. (30) In the case of Wheeler v. Northern Colo. Irr. Co., Helm, J., said:

"A cursory reading of the statutes might convey the impression that the legislature regarded the carrier as possessing a salable interest in this water, and the constitutional phrase (Art. 16, §8) 'to be charged for the use of water,' relating to the carrier's compensation, might at first glance seem to recognize a like ownership in such use. But construing all the Ante, $116.

(27) (28) (29)

Id.

Cases cited in next note.

(30) Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 17 P. 487 ('87); Helm, J., in Farmers' Highline C. & Res. Co. v. Southworth, 13 Colo. 111, 21 P. 1028 ('89); Wyatt v. Larimer and Weld Irr. Co., 18 Colo. 298, 33 P. 144 ('93), reversing 1 Colo. App. 480, 29 P. 906 ('92); Albuquerque Land & Irr. Co. v. Guiterrez, 10 N. M. 177, 61 P. 357 ('00); Slosser v. Salt River Val. C. Co., 7 Ariz. 376, 65 P. 332 ('01); Gould v. Maricopa C. Co., Ariz. 76 P. 600 ('04); Salt River Canal Co. v. Nelssen, Ariz., 85 P. 117 ('06)

--

§ 117, "Selling” and “Renting."

provisions of that instrument bearing upon the subject in pari materia, the correctness of both these inferences must be denied. * * * It requires no citation of authority to show that the words "purchase" and "sale," together with other words of like import, used in this connection by the legislature, must receive a corresponding interpretation." (31) Chief Justice Beck, in the same case, referring to the above mentioned constitutional phrase "to be charged for the use of water," says:

"It is not as objectionable as the phraseology of the statutes, which includes such expressions as 'selling water,' 'furnishing water for sale,' 'purchasing water and the like." (32)

The Colorado court of appeals, in the case of Wyatt v. Larimer and Weld Irrigation Co.,(33) took the opposite position and held that the company, by the diversion and delivery of the water, satisfied the requirements of the constitution as to the elements of an appropriation, and by its own act completed the appropriation, and therefore became the "proprietor" or "owner" of the water diverted, and "as such, may sell, transfer and deliver it to be used by those who require it for irrigation."

This case was reversed by the supreme court, (34) and the ruling in Wheeler v. Northern Colorado Irrigation Co., (35) mentioned above, was re-affirmed and followed. Goddard, J., of the supreme court, said:

"We are unable to see wherein the discussion by the learned judge writing the majority opinion touching the constitutional status of irrigation companies in this state was essential to the decisions of the questions involved in the case. But, inasmuch as the views expressed in that opinion are so at variance with the numerous decisions of this court, we feel impelled to express our disapproval thereof, and adherence to the doctrine heretofore announced by

our

(31) Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 588-9, 17 P. 487 ('87), 3 Am. St. 603.

(32) Id., 598.

(33) 1 Colo. App. 480, 29 P. 906 ('92).

(34)

18 Colo. 298, 33 P. 144 ('93).

(35) Note 30, supra.

this court in relation to the status of canal companies organized for the purpose of carrying water for general purposes of irrigation. We adhere to the doctrine that such a canal company is not the proprietor of the water diverted by it, but that 'it must be regarded as an intermediate agency existing for the purpose of aiding consumers in the exercise of their constitutional rights, as well as a private enterprise prosecuted for the benefit of its owners.'

(36)

§ 118. Relation to Consumer and Public-"Carrier," "Consumer" and "Co-consumer."

A corporation organized for the purpose of conducting water for “sale” (37) or hire, (37) to be used in irrigation, is by the very nature of its purpose dealing, from the standpoint of a monopoly, with that portion of the public owning or occupying lands under or in the vicinity of its canal system, and therefore the public has an interest in seeing that its dealings with its consumers are upon a fair and reasonable basis. (38) As was said by Helm, J., in Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 17 P. 487 ('87):

"The Colorado doctrines of ownership and appropriation (as declared in the constitution, statutes and decisions) necessarily give the carrier of water an exceptional status; a status differing in some particulars from that of the ordinary common carrier. * * * Under the constitution, as I understand it, the carrier is at least a quasi public servant or agent. It is not in the attitude of a private individual contracting for the sale or use of his private property. It exists largely for the benefit of others; being engaged in the business of transporting, for hire, water owned by the public to the people owning the right to its use. It is permitted to acquire certain rights as against those subsequently diverting water from the same natural stream. It may exercise the power of eminent domain. Its business is affirmatively sanc(36) Wyatt v. Larimer and Weld Irr. Co., 18 Colo. 298, 308, 33 P. 144 ('93).

(37)
(38)

Ante, §117.

White v. Farmers' Highline C. & R. Co., 22 Colo. 191, 197, 43 P. 1028 ('96). As to public authorities fixing water

rates, see ante, §§93-97.

§ 118, Relation to Consumer and Public-"Carrier," "Consumer" and "Co-consumer.'

tioned and its profits or emoluments are fairly guaranteed. But in consideration of this express recognition, together with the privileges and protection thus given, it is, for the public good, charged with certain duties and subjected to a reasonable control." (39)

Such a corporation is charged with what the decisions term a public duty or trust. (40) In classing irrigation or canal companies as quasi public servants and common carriers the courts have but followed the rule laid down with respect to gas, (41) telephone, (42) and water companies engaged in furnishing water to the inhabitants of municipalities. (43) By statute in Colorado and in most of the arid and semi-arid states, it is provided that the water shall be under the control of the ditch company, acting through a superintendent or other officer whose duties are prescribed, (44) and the statute does not

(39) Canal companies are quasi public servants and common carriers, see Wyatt v. Larimer and Weld Irr. Co., 18 Colo. 298, 308, 33 P. 144 ('93), reversing 1 Colo. App. 48, 29 P. 906 ('92); Junction Cr. & N. Durango Domestic & Irr. D. Co. v. City of Durango, 21 Colo. 194, 196, 40 P. 356-7 ('95); Farmers' Independent D. Co. v. Agricultural D. Co., 22 Colo. 513, 521, 45 P. 444 ('96); Lanning v. Osborne [Cal.], 76 F. 319 ('96); Atlantic Trust Co. v. Woodbridge Canal & Irr. Co. [Cal.], 79 F. 39 ('97); San Joaquin & K. R. Canal & Irr. Co. v. Stanislaus County [Cal.], 90 F. 516 ('98); Prescott Irr. Co. v. Flathers, 20 Wash. 454, 55 P. 635 ('99); Albuquerque Land & Irr. Co. v. Guiterrez, 10 N. M. 177, 61 P. 357 ('00); Candelaria v. Vallejos, N. M. 81 P. 589 ('05); Farmers' Irr. Dist. v. Frank, Neb. - 100 N. W. 286 ('04); Gould v. Maricopa Canal Co., Ariz. ('04); Colo. Canal Co. v. McFarland & Southwell, 94 S. W. 400 ('06).

76 P. 598 Tex. -,

(40) Price v. Riverside Land & Irr. Co., 56 Cal. 431, 433 ('80); Cozzens v. N. Fork Ditch Co., Cal., 84 P. 342 ('06); Junction Cr. & N. Durango Domestic & Irr. Ditch Co. v. City of Durango, 21 Colo. 194, 196, 40 P. 356 ('95); Farmers' Ind. Ditch Co. v. Agricultural D. Co., 22 Colo. 513, 521, 45 P. 444 ('96).

(41)

(42)

('58).

('02).

Shepard v. Milwaukee Gas Light Co., 6 Wis. 539, 547-9

State v. Kinloch, 93 Mo. App. 349, 67 S. W. 684, 686-8 (43) Wood v. City of Auburn, 87 Me. 287, 32 Atl. 906, 907-8 ('95); City of Danville v. Danville Water Co., 178 Ill. 299, 53 N. E. 118, 122-3 ('99). See, also, ante, §95, note 89.

(44) 1 Mills' Ann. Stat., $2289. Statutes, post, Part X. White v. Farmers' Highline C. & R. Co., 22 Colo. 191, 196, 43 P. 1028 ('96).

permit the consumer to take the water himself under his contract of carriage, even though the company is bound to supply it. (45) The statute controls notwithstanding it was enacted after the contract was made. (45) In the early cases, wherein the rights of irrigation corporations were involved, the adjustment of priorities and the differences between consumers were the principal questions. But it was soon recognized that the status of the carrier and its relations to the consumer were vital questions, and they immediately commanded thoughtful and earnest attention. (46) In all of the cases the terms "carrier" and "consumer" are used as meaning, respectively, the canal company and the tiller of the soil, and Mr. Justice Helm used the word "co-consumer" to designate those consumers taking water from the same artificial stream. (47)

$119.

CHAPTER 21.

CONTRACTS.

Contracts of or with the Company.

The irrigation companies generally furnish the water to the consumers under written contracts, which have been held to be subject to the usual rules that apply to the construction of ordinary contracts. (48)

(45) White v. Farmers' Highline C. & R. Co., 22 Colo. 191, 195-6, 43 P. 1028 ('96). As to the right to take water without knowledge of the ditch company, see Coffin v. Left H. D. Co., 6 Colo. 443 ('82).

(46) Wheeler v. Northern Colo. Irr. Co., 10 Colo. 582, 586, 17 P. 487 ('87).

(47) Id. Farmers' Highline C. & Res. Co. v. Southworth, 13 Colo. 111, 119, 21 P. 1030 ('89).

(48) Fresno Canal & Irr. Co. v. Dunbar, 80 Cal. 530, 22 P. 275 ('89); San Diego Flume Co. v. Chase, 87 Cal. 561, 25 P. 756, 26 P. 825 ('91); Russ L. & M. Co. v. Muscupiabe L. & W. Co., 120 Cal. 521, 52 P. 995 ('98); Hewitt v. San Jacinto, etc., Dist., 124 Cal. 186, 56 P. 893 ('99); San Diego F. Co. v. Souther [Cal.], 90 Fed. 164 ('98); Sample v. Fresno, etc., Co., 129 Cal. 222, 61 P. 1085 ('00); Hargrave v. Hall, 3 Ariz. 252, 73 P. 400 ('91); Wyatt v. Larimer, etc., Co., 18 Colo. 298, 33 P. 144 ('93); Wright v. Platte, etc., Co., 27 Colo. 322, 61 P. 603 ('00); Brighton, etc., Co. v. Little, 14 Utah 42, 46 P. 268 ('96); Western, etc., Co. v. Chapman, 8 Kan. App. 778, 59 P. 1098 ('99); Moore-Cortes C. Co. v. Gyle, 36 Tex. Civ. App. 442, 82 S. W. 350 ('04).