A rehearing was granted in this case to give further consideration to two points discussed in our former opinion. The first point has to do with the proper interpretation of the case of Joerger v. Mt. Shasta Power Corp., 214 Cal. 630 [ 7 Pac. (2d) 706 ], and the application of the rule of that case to the facts of this case. Upon further consideration we are of the opinion that the discussion of the Joerger case was not necessary to the opinion and may be stricken therefrom without in any way affecting the result. The opinions of the District Courts Of Appeal in these cases have clearly established the law of the case to be that the plaintiffs are entitled to damages. To the discussion contained in our former opinion on this point, we add the following observation. Assuming, but not deciding, that defendant’s use of the water is in the exercise of its riparian rights, but constitutes an excessive use of the waters of Fall Paver, plaintiffs could not, as contended by defendant, secure an apportionment of said waters. This is so for the reason that a public use has attached to the entire flow of Fall River. If plaintiffs should bring an action for apportionment they would be immediately met with the defense that a public use had attached to the entire flow. The same reasons that prevent the plaintiffs from securing an injunction in the present eases would prevent them from securing an apportionment.

The second point requiring further discussion is whether the stipulation offered by defendant should have been admitted into evidence. This point will be more fully discussed hereafter.

We are fully in accord with the other portions of our former opinion. We therefore adopt as part of our opinion on rehearing, the following portions of our former opinion (86 Cal. Dec. 235 [ 24 Pac. (2d) 801 ]) :

It is to be noted that this stipulation contains two very important concessions on the part of the defendant. First, it is agreed, that defendant will maintain the level of the pool by a release of Fall river waters if necessary; and second, it is agreed that the defendant will always maintain the dam and that the judgment may contain a provision to that effect.

As to the first concession, it is our opinion that it was beyond the power of the defendant to make without first securing the consent of the railroad commission. The evidence clearly shows that defendant is a public utility and that a public use has attached to all but an immaterial portion of the flow of Fall River. For the ten-year period immediately preceding the trial of this action substantially the entire flow of Fall River has been diverted by defendant and devoted to a public use. In effect the stipulation amounts to an offer to reconvey a portion of this water to plaintiffs. This, defendant cannot do without the consent of the railroad commission. A public utility cannot thus convey its property which has been dedicated to a public use without the consent of that commission. Section 51 of the Public Utilities Act (Stats. 1927, p. 78) expressly provides :

There are many cases holding, in accordance with that section, that a public utility cannot convey or transfer its property which has been dedicated to a public use without the consent of the railroad commission. (Napa Valley Elec. Co., v. Calistoga Elec. Co., 38 Cal. App. 477 [ 176 Pac. 699 ]; Water Users etc. Assn. v. Railroad Com., 188 Cal. 437 [ 205 Pac. 682 ]; Baldwin v. Railroad Com., 206 Cal. 581 [ 275 Pac. 425 ].)

Appellant relies on Collier v. Merced Irr. Dist., 213 Cal. 554 [ 2 Pac. (2d) 790 ], and Colorado Power Co. v. Pacific Gas & Elec. Co., 218 Cal. 559 [ 24 Pac. (2d) 495 ], as establishing a contrary doctrine. It is true that those cases recognized that in water cases a defendant may minimize the damages by guaranteeing a water supply to the plaintiff, but that is as far as the rule established by those cases goes. The Collier case did not involve a public utility so that the consent of the railroad commission was not required. In the Colorado Power Company case, although the defendant was a public utility, it does not appear that the point here involved was discussed or mentioned. That case cannot, for that reason, be considered as authority on the point. We emphasize the fact that the stipulation here involved was offered after the public use had attached. We, therefore, hold that the trial court properly excluded this part of the stipulation from consideration.

However, this reasoning does not apply to the second concession contained in the stipulation, that is, the guarantee to maintain the dam. Such a guarantee was well within the powers of the company to make and in our opinion should have been admitted by the trial court. The gravity of this error in refusing to permit the jury to consider this guarantee becomes apparent when the peculiar facts of this case are considered. The evidence shows that since the construction of the dam the flow of Pit River at all times has been more than sufficient to keep Pitville Pool at the level that existed before the diversion. A period of about ten years has elapsed since the construction of the dam, and during all that period the pool has been maintained at its old level. Plaintiff as far as quantity of water is concerned has failed to show any damage actual or prospective by reason of the diversion, provided the dam is maintained. This the defendant offered to do and offered that the judgment should so provide. It was error of a most serious nature to exclude from the jury’s consideration this portion of the stipulation.

The seriousness of the error is made evident when the form of the hypothetical question submitted to plaintiffs’ value witnesses is considered. By that question the witnesses were told that after the diversion “the defendant constructed a concrete dam and works at the point known as the rock reef and that thereafter the Pit river pool was restored to its former level and that said level has since been maintained’’. The witnesses were not told that defendant had agreed to stipulate that it would continue to maintain the dam. The hypothetical question also told the witnesses that after the diversion and before the construction of the dam the level of Pitville pool had been lowered four to five feet. Without a guarantee of the future maintenance of the dam it is obvious that the value witnesses were forced to consider that plaintiffs’ rights as to quantity of water were uncertain. The cross-examination of these value witnesses indicates that such was the fact. This was error and requires a reversal on the issue of damages alone.

On the other issues involved in this ease the following portions of our former opinion are pertinent and are hereby adopted as a portion of the opinion of this court on rehearing (86 Cal. Dec. 248, 249 [ 24 Pac. (2d) 801 ]) :

However, from what has been said, we do not intend to foreclose the plaintiffs on a retrial from making a further showing, if they can do so, that the offer of the defendant to maintain the dam at the rock reef and the maintenance thereof as promised will not effectually maintain the natural level of the water in the Pitville pool without discharging therein a portion of the water of Pall River. It is obvious that no useful purpose would be served in retrying all the issues in this case. The only issue requiring a further trial is the issue of damages.

For the foregoing reasons the judgments appealed from are and each of them is hereby reversed and the cases remanded for a new trial on the issue of damages alone and in accordance with the views herein expressed. Both sides to bear their own costs on this appeal.

Preston, J., and Langdon, J., deeming themselves disqualified, did not participate herein.

Rehearing denied.

Preston, J., and Langdon, J., deeming themselves disqualified, did not participate therein.