Appropriation of Waters for Public Bse—Private Appropriation by Means of Same Ditches—Reservation of Private Rights in Sale. —One who has made an appropriation of waters for the public use of sale, rental, and distribution, under the constitution of 1879, may by means of the same canal and ditches make a private appropriation of waters for use upon his individual land, and upon a subsequent sale of the water system may withhold from the sale the waters so privately appropriated.

Id.—Public Appropriator Cannot Reserve Water for Private Use.— An appropriator of water for public use is but an instrumentality for the distribution of the water to those entitled to its use, and upon a sale by him of the water-rights so appropriated .he has no power to reserve to himself for his private purposes any part of such water.

Id.—Private Appropriation—Measure op Extent op Eight.—The right of an appropriator of water for private use upon his individual land, and his right to priority in the use of such water, is measured by the amount which he had been actually taking and applying to a beneficial use upon that land, and not .by the amount which he took, nor by the amount which he claimed, nor by an amount sufficient to thoroughly and properly irrigate the land.

Id.—Preferential Eight to Water Appropriated for Public Use— Consumer Cannot Obtain.—A public service water company which is appropriating water under the constitution of 1879, for purposes of rental, distribution, and sale, cannot confer upon a consumer any preferential right to the use of any part of its water. All are equally entitled to share in the use of the water who pay, or offer to pay, the legal rate and to abide by the reasonable rules and regulations of the company.

Id.—Contract with Consumers — Breach by Consumer — Continued Eight to Water.—It does not follow that a water company may not make specific contracts with individual consumers which are within the purview of the constitution and within valid legislative enactments regulating the public use. Such a contract, even if violated by the consumer, could not operate to deprive him of his constitutional right to the water furnished by the public service corporation upon tender to it of the legal rate. Por the breach of the consumer’s contract, the water company must seek other redress than that of depriving the consumer of his share of the supply.

Id.—Appropriator May Limit Territory to Be Supplied.—The rule that a water company, or person in charge of water devoted to public use cannot confer a preferential right upon one consumer over another, does not deny the right of such company or person in possession of a limited amount of water to devote that amount to the irrigation of a given area of land. The company may fix the limits of the territory to be supplied, and lawfully agree to supply its waters, first, to the lands within that territory, and to supply to outsiders only such surplus as there may be after the needs of the original territory for which the water was procured are satisfied. Such a restriction would not be in derogation of the public trust, but would be a mere regulation of the use in the performance of the trust.

Id.—Apportionment of Water Among Consumers.—Consumers, having once been supplied by the company, are entitled to a continuation of such supply, unless their quantum shall be diminished by a shortage for which the water company is not responsible, or a shortage by reason of the increased demand of added consumers. In such cases, it is the duty of the water company to supply such water as it has, fairly apportioned between its consumers.

Id,—Attempt by Statute to Give Preferential Eight Is Unconstitutional.—Any attempt, by section 552 of the Civil Code, or by the provisions of the act of March 12, 1889, as amended by the act of March 2, 1897 (Stats. 1897, p. 49), to confer upon any particular consumer any especial, permanent, and preferential right further than as above stated, is unconstitutional and void.

Id.—Refusal of Consumes to Pay fob Water—Claim of Preferential Right to Use Without Charge—Breach of Contract.—The refusal of a consumer of water appropriated for public use, who claimed a permanent preferential right to the use thereof without charge, either to pay for the water at the rate fixed by law or by a contract with the company supplying the water, amounted to an intentional breach and repudiation of the contract, and justified the company in refusing further to supply him with water.