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Show 548 THE APPROPRIATIVE RIGHT eminent domain to incorporated mutual irrigation companies.554 This section included in "public uses," on behalf of which the right of eminent domain might be exercised, the works for irrigating lands "furnished with water by corporations supplying water to the lands of the stockholders thereof only." However, the previous concept that use of water by shareholders of a corporation which, pursuant to the purpose of its organization, supplies water only to its own shareholders at cost, is a private use, still prevails.555 The California Public Utilities Code reenacts a former section declaring that such a company is not a public utility, and is not subject to the jurisdiction, control, or regulation of the Public Utilities Commission.556 Construing together these two California statutes, both of which are still in effect, the apparent conclusion is: (a) for the purpose of exercising the power of eminent domain, the use of water by a mutual company is deemed a public use; (b) with respect to public regulation of rights and services, it is a private use. Inasmuch as the functions of condemning rights-of-way and of delivering water to users are strictly separate, the two contrasting concepts for practical purposes are not incompatible.557 Appropriation Initiated by One Party and Completed by Another The general rule that an appropriation of water may be initiated by one party and completed by another has been recognized throughout practically the entire history of the appropriation doctrine in the West. The purpose of completion by another may have been part of the appropriator's original plan, or it may have resulted from circumstances that developed after the project was under way. These differences will appear in the ensuing discussion. (For various aspects of the subject of completing an appropriation, see, in chapter 7, "Methods of Appropriating Water of Watercourses-Completion of Appropria- tion.") Thus, in a stream system adjudication, the Oregon Supreme Court declared that it was the plan of the 1891 law, "and runs through all the cases," that an appropriation of water may be made for the future use of another. This includes future use on lands which the appropriator does not then own, or which he does not contemplate owning and which he never does own.558 The 554Cal. Civ. Pro. Code § 1238(4) (West Supp. 1970). 55s«* * * a mutual water company, devoting the water which it diverts exclusively to the use of its own stockholders, and not to the general public* * *is not engaged in public service and is not a public utility."/. M. Howell Co. v. Corning In. Co., ill Cal. 513, . 519, 171 Pac. 100(1918). 556Cal. Pub. Util. Code § 2507 (Supp. 1970). s57See discussion of distinctions between mutual and commercial service of water, and between private-contract and public-utility service, in Hutchins, Wells A., Selby, H. E., and Voelker, Stanley W., "Irrigation-Enterprise Organizations," U. S. Dept. Agr. Cir. 934, pp. 19-20 and 68-71 (1953). 558In re Deschutes River and Tributaries, 134 Oreg. 623, 655, 286 Pac. 563, 294 Pac. 1049(1930). |