Cozzens

This was an application to the superior court of Sacramento county for a writ of mandate to compel the defendant to furnish plaintiffs sixty-six thousand gallons of water per day for irrigating fruit trees and for domestic uses. A demurrer was interposed to the petition; the main objections being that the petition does not state facts sufficient to authorize the issuance of a writ of mandate, because the demand was based upon a certain water right and contract which provided for furnishing other lands along said ditch with certain quantities of water, and the petition fails to state whether the defendant has sufficient water to furnish for irrigating said other lands and to give the plaintiffs the water demanded. There were many other objections to the petition raised by said -demurrer, but it seems to have been sustained upon the ground above stated. The plaintiffs decline to amend, and judgment was rendered denying the writ; hence this appeal.

The defendant is the owner of a water system established for the purpose of furnishing water for irrigating a large tract of land in the San Juan grant, Sacramento county, and for domestic use. The owners of said land to be irrigated from…

I concur in the order affirming the judgment. But I do not desire to be understood as concurring in the view that rights purely contractual, even though they relate to the sale, rental, or distribution of water, can be enforced through the medium of a writ of mandate. Mandate will issue only to compel the performance of an act which the law specially .enjoins as a duty resulting from an office, trust, or station. Water appropriated for sale, rental, or distribution is a public use, and subject to the regulation and control of the state. (Const., art. XIV, sec. 1.) Hence, every person, company, or corporation engaged in the sale, rental, or distribution of water may be compelled to furnish water to all who require it, to the full extent of the supply of water under the control of such person, company, or corporation. This is a duty specially enjoined by law, and mandate will lie to enforce it. But the legal duty of the respondent in the ease at bar is measured and limited by the quantity of water which it has the ability to supply. When the supply is exhausted by the requirements of those having a legal right to its use, the legal duty as to others ceases. Therefore it was…