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<br />OUill93 <br /> <br />, <br /> <br />,- <br /> <br />(No. 6589) <br /> <br />CITY ,um COUNTY OF DEIW'uR v. BRaiN ET AL <br /> <br />1. lllRIGATING CClLiPANY--Carrying Water for Others, is a quasi public <br />carrier, as well as a private enterprise. Where it has water subject <br />to its control bona fide applicants are entitled to it, upon making tender <br />of the lawful rate, and complying with the reasonable rules of the carrier. <br /> <br />2.---Consumer-His Right-The right of one who is supplied with <br />water pursuant to contract, i'ram a ditoh owned and operated by a oarrier <br />com;Jany, is limited by his oontract, so far as valid. and by the conditions <br />whioh the law imposes. He does not occupy the exact status of an independ- <br />ent appropriator directly from the stream. :','here his contract entitles <br />him to a specifio volume of water for a particular year, without any valid <br />limi. tation as to future use, and under such contract he has reoeived the <br />specified VOlume, and applied it to beneficial uses, he is entitled to the <br />same volume annually thereafter, upon tender of the rate which the irrigat- <br />ing company may lawfully exact, and complianoe with its reasonable regulations. <br /> <br />If, after the expiration of his contract, he makes no such tender, nor <br />any legal demand for the water, he is in the same posi ti on as though he had <br />never reoeived water from the ditch. His future riGhts, if any, date from <br />the time when he again contracts with the carrier, or makes a lawful demand <br />to be supplied with water. <br /> <br />And where the oontract limits the ccnsumer to a specified volume of <br />water he is bound by this limitation. If by collusion with the employes of <br />the irrigating company he reoeives a volwne in excess of what is specified <br />in the contract, making no payment for such excess, he acquires no right <br />to such excessive volume, in subsequent years. <br /> <br />But where the consumer, by the annual use of the water in a partioular <br />VOlume, has aC'iuired the right to continue in the enjoyment of the same <br />volume, a condition limiting his right, imposed upon him without his consent, <br />and against his protest, is invalid; e. g. where a municipal oorporaticn hav- <br />ing acquired the control of the works of an irrigation company, requires even <br />those who are entitled to be supplied therefrom, by reason of such former user, <br />to enter into contracts "subject to the needs and requirements of the city" <br />such contracts exocuted under protest, are without effect to limit the right <br />of the consumer to the volume of water before rightfully enjoyed; otherwise <br />as to any volume in exoess thereof. <br /> <br />3. --Consumer Leasing His Right--Effect--Amunicipal corporation <br />beneficially entitled to an irrigating ditch, and having present occasion <br />for only part of the volume diverted, leases the excess to other consumers. <br />Its rights are preserved, as if it had actually applied the water to benefi- <br />oial uses. <br /> <br />-1- <br />