Mahoney

1. The petition does not show that petitioners ever offered to sell at any price, or that they refused to name a price, and shows affirmatively that the Commissioners never determined on a price to offer for the lands and waters of petitioners.

*385 There was, therefore, no such negotiation as is required by the second section of the Act of March 27th, 1876. Such negotiation is made a necessary preliminary to the appointment of a Board to' condemn.

2. The act distinctly required that the Commissioners should make careful examination of all water rights, etc., on the peninsula of San Francisco, and “ wherever convenient to supply San Francisco with water,” and authorized them to purchase any such rights and property.

While it may be that the Court could not be called on to review the judgment of the Commissioners, or to hold that they should purchase one property instead of another, yet it is manifest that they were not empowered arbitrarily to refuse to consider the propriety of purchasing any one of the properties which they had examined.

It affirmativ.ely appears from the petition that the Commissioners made no effort to agree as to price with the owners and claimants of any…