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Show ELEMENTS OF THE APPROPRIATIVE RIGHT 547 These declarations have several meanings. They support the principle that the Western States, which contain large areas in which available water supplies are not adequate for full requirements of good lands, the utilization of streamflow in meeting as far as practicable the requirements of private users is a public purpose in that it contributes to the public welfare. Again, as stated in chapter 7 under "Rights-of-Way for Water Control and Related Purposes- Private lands," their characterization as public uses of water provides a basis for clothing the controlling organizations with the power of eminent domain in acquiring rights-of-way for diversion, storage, and delivery of the water. And they also provide the basis for subjecting the sale or rental of the water to State control under the laws regulating public utilities. In fact, the California and Idaho constitutional declarations specifically include phrases subjecting such sales or rentals to regulation and control of the State under procedure prescribed by law. And the Oregon statute provides that the right to collect rates for such use of water is a franchise, and that the rights shall be fixed by public authority. What is meant in these provisions by "sale" and "rental" of water is readily understandable, but the meaning of the word "distribution" is less obvious. It may have been intended originally as a catchall phrase to include all water deliveries made by appropriators to persons other than themselves, whether or not technically pursuant to sale or rental. However, State regulation of rates and charges for delivery of water has not been imposed upon irrigation districts, which serve users of water on or in connection with lands within their boundaries, nor upon mutual irrigation companies, which serve their own stockholders at cost, both of which are self-operated and controlled and are not in the business of serving the public for profit. Nor is such regulation imposed upon commercial irrigation companies of the type which deal, not with the public generally, but only under private contracts with water users of their own choosing. A more reasonable interpretation of the term "distribution," whether or not so intended, is to apply it to the diversion and delivery to consumers of water which the irrigation company does not sell or rent because, under the circumstances in the particular jurisdiction, it has no title to the water. It is simply charging the consumers, not a price for the sale of a commodity that it does not own, but for the cost of services performed in obtaining physical possession of the water and transporting it to the consumers' places of use. This view is supported by a holding of the Arizona Supreme Court in 1904 to the effect that water diverted from a public stream by a public service irrigation company remains public water until it is actually used by the appropriator-consumers .5S3 An anomalous situation developed when the California Code of Civil Procedure was amended in 1917 for the purpose of extending the power of ss*Gould v.Maricopa Canal Co., 8 Ariz. 429, 446-447, 76 Pac. 598 (1904). |
