Public Utilities Commission of State of Idaho v. Natatorium Co.

Decision Date06 November 1922
PartiesPUBLIC UTILITIES COMMISSION OF THE STATE OF IDAHO, Consisting of GEO. E. ERB, E. M. SWEELEY and J. M. THOMPSON, Respondent, v. NATATORIUM COMPANY, a Corporation, Appellant and BOISE CITY, a Municipal Corporation, JESSIE M. HURTT and EDWARD STEIN, Intervenors and Respondents, and Mrs. CRUSA AROSTEGUI and JUAN YRIBAR, Intervenors and Respondents,
CourtIdaho Supreme Court

Rehearing Denied Dec. 30, 1922.

APPEAL from the Public Utilities Commission. Reversed.

Order reversed. Costs awarded to appellant.

Johnson & Nixon, for Appellant.

The filing of the water right notice is not an implied dedication of the hot water to a public use. The right to the water was acquired by actual application to beneficial use independently of the statute. (Sandpoint etc. Co. v Panhandle Co., 11 Idaho 405, 83 P. 347; Neilson v Parker, 19 Idaho 727, 115 P. 488; Furey v Taylor, 22 Idaho 605, 127 P. 676; Crane Falls Co. v Snake River Irr. Co. (on rehearing), 24 Idaho 63, 133 P 655; Haight v. Costanich, 184 Cal. 426, 194 P. 26; Bean v. Morris (C. C. A.), 159 F. 651.)

The language of a water right appropriation notice does not in itself make the owner a public utility. (Del Mar Water, Light & P. Co. v. Eshleman, 167 Cal. 666, 140 P. 591; Thayer v. California Dev. Co., 164 Cal. 117, 128 P. 21; Allen v. Railroad Com., 179 Cal. 68, 175 P. 466, 8 L. R. A. 249; De Pauw University v. Public Ser. Com., 253 F. 848.)

Neither the statute nor provisions of art. 15 of the constitution of Idaho can make a private use public, without unjustly interfering with private property in violation of the federal constitution. (Marin Water & Power Co. v. Sausalito, 168 Cal. 587, 143 P. 767; Storey v. Richardson, 186 Cal. 162, 198 P. 1057, 18 A. L. R. 750; Stratton v. Railroad Com., 186 Cal. 119, 17 A. L. R. 72, 198 P. 1051; Stoehr v. Natatorium Co., 34 Idaho 217, 200 P. 132; Producers' Transp. Co. v. Railroad Com., 251 U.S. 226, 40 S.Ct. 131, 64 L.Ed. 239; Producers' Transp. Co. v. Railroad Com., 176 Cal. 499, 69 P. 59; Associated Pipe Line Co. v. Railroad Com., 176 Cal. 518, 169 P. 62, L. R. A. 1918C, 849.)

The common-law doctrine that the owner of the land is the owner of the water developed and situated thereon applies where his right to the water does not come in conflict with the superior and paramount right of one who has appropriated the water for beneficial use in conformity with the statutes. (27 R. C. L., sec. 170; Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 133 Am. St. 125, 101 P. 1059, 23 L. R. A., N. S., 1109; Schodde v. Twin Falls Water Co., 224 U.S. 107, 33 S.Ct. 470, 56 L.Ed. 686; King v. Chamberlin, 20 Idaho 504, 118 P. 1099.)

The hot water in question may properly be regarded as within the expression "developed water" as used in some of the decisions and discussed in 2 Kinney on Irrigation, 2d ed., page 2187, sec. 1206, and which the author says belongs to the parties who, by their own exertion, discovered and developed the water. (Reno v. Richards, 32 Idaho 1, 178 P. 81.)

The settled doctrine in America as expressed in the later decisions may be said to fully recognize the private property rights to subterranean waters, in one who has developed the same on his own land, where the question of the correlative rights of other adjoining proprietors equally entitled to it does not arise, and subject to the maxim that one must use his own so as not to injure his neighbor. (Katz v. Walkinshaw, 141 Cal. 116, 99 Am. St. 35, 70 P. 663, 74 P. 766, 64 L. R. A. 236; Gagnon v. French Lick Springs Co., 163 Ind. 687, 72 N.E. 849, 68 L. R. A. 175; Ohio Oil Co. v. Indiana, 177 U.S. 190, 20 S.Ct. 576, 44 L.Ed. 729; 20 Morrison Min. Rep. 466; Horne v. Utah Oil Refining Co. (Utah), 202 P. 815; Southern P. R. R. Co. v. Dufour, 95 Cal. 615, 30 P. 783, 19 L. R. A. 92.)

The provisions of art. 15 of the constitution are not self-executing but require legislation to carry them into effect. (Boise City Irr. & Land Co. v. Turner, 176 F. 373; Palmer v. Railroad Com., 167 Cal. 163, 138 P. 997.)

The law itself has recognized the ownership of private waters and has excepted private waters from the provisions of the statute. (C. S., sec. 5572.)

"It is fundamental that no executive officer or board has the power to deprive a party of a vested right to the use of water. (Speer v. Stephenson, 16 Idaho 707, 102 P. 365.) To permit this would clearly be depriving him of his property without due process of law." (Sanderson v. Salmon River Canal Co., 34 Idaho 145, 199 P. 999.)

J. M. Lampert, for Respondent Boise City.

The disclaimer of public service made by a company's officer when the legal consequences of their conduct are drawn in question is not entitled to great weight, after many years of serving a substantial portion of the public. (Public Service Com. v. Valley Mercantile Co. (Mont.), P. U. R. 1921D, 803.)

The intention to which courts will give heed is the intention which finds expression in conduct and not that which is secreted in the heart of the owner. (Indianapolis v. Kingsburry, 101 Ind. 201.)

There is a physical service limit to all public utility plants, but if that portion of the public is served that can reasonably be served and to the limit of the available supply, especially if the supply is increased for the specific purpose of serving the maximum number of customers, it is a public service. (1 Wyman on Public Service Corporations, 239; Public Service Com. v. Valley Service Com., supra.)

A corporation, firm or individual employing an agency purchased at the expense of the taxpayers, and hence solely for public purpose for distribution of its product through pipes such as the company distributing hot water using the public streets and alleys, is in a public service. (12 R. C. L. 883.)

The acceptance of a franchise to use the public streets is almost conclusive evidence of public profession. (1 Wyman on Public Service Corporations, p. 183, sec. 215; Urmaoga Tel. Co. v. Lorraine, etc. (Ill.), P. U. R. 1920E, 243.)

This natural hot water based upon a water right filing secured from the state, tapping a subterranean flow and by the company's notice pledging to the state and to the public that the use of such water would be for domestic and other beneficial uses is very similar to the natural gas and water power privileges which give to the owner a natural monopoly, and the rule making the distributors of such commodities public service corporations has been well established. (1 Wyman on Public Service Corporations, p. 74, sec. 94.)

"If virtual monopoly is made out as the permanent condition of affairs in a given business, then the law, it seems, will consider that calling public in its nature." (1 Wyman on Public Service Corporations, p. 133, sec. 156.)

"The question whether a corporation is or is not a public utility is determined by its acts, and not by what its charter provides." (State ex rel. Dancigar & Co. v. Public Service Com. (Mo.), P. U. R. 1919A, 353; Re Appalachian Power Co. (W. Va.), P. U. R. 1919D, 286; Re New State Canal Co. (Ariz.), P. U. R. 1919A, 672; Re Portageville Light & Power Co. (Mo.), P. U. R. 1919E, 586; Re Union Electric Light & Power Co. (Mo.), P. U. R. 1918E, 490; Re Commonwealth Mining & Milling Co. (Ariz.), P. U. R. 1915B, 536; Yeatman v. Towers, 126 Md. 513, P. U. R. 1915E, 811, 95 A. 158.)

"A company that holds itself out to serve the public within a given area with water upon specified terms is a public utility." (Berry v. Oro Loma Farms Co. (Cal.), P. U. R. 1917F, 631; Van Dyke v. Geary, 244 U.S. 39, 37 S.Ct. 483, 61 L.Ed. 973; Terminal Taxicab Co. v. Kutz, 241 U.S. 252, Ann. Cas. 1916D, 765, 36 S.Ct. 583, 260 L.Ed. 984; Van Hossear v. Railroad Com., 184 Cal. 553, 194 P. 1003; Clarksburg Light & Heat Co. v. Public Service Com., P. U. R. 1920A, 639; Re Garden Home Water Works (Or.), P. U. R. 1919D, 1921.)

Davidson & Davison, for Respondents Hurtt and Stein et al.

The use of all waters of the state sold, rented or distributed is a public use, subject to the regulation and control of the state, in the manner prescribed by law. (Const., sec. 1, art. 15; Wilterding v. Greene, 4 Idaho 773, 45 P. 134; Speer v. Stephenson, 16 Idaho 707, 102 P. 365.)

All of the water claimed by appellant was appropriated under the provisions of the constitution and statutes of the state, and to entitle it to the use thereof there must have been an application to a beneficial use; this beneficial use included the sale, rental and distribution, and the consumer of such water under a sale, rental or distribution thereof acquired a vested right therein, subject to continued use and payment. (Const., art. 15, secs. 1, 2 and 3; Murray v. Public Utilities Com., 27 Idaho 603, 150 P. 47, L. R. A. 1916F, 756; Hard v. Boise City Irr. Co., 9 Idaho 589, 76 P. 331.)

The charter powers to "acquire, develop, hold springs, wells and streams of both hot and cold water, and to conduct the waters thereof to Boise City and vicinity in the county of Ada, state of Idaho, for the use of said city and the inhabitants thereof," followed by a performance of said acts, is a pursuit of the charter's powers sufficient to make the service a public utility. (Del Mar Water Co. v. Eshleman, 167 Cal. 666, 140 P. 948.)

The original company laying the pipes in the streets and alleys of Boise City, the Artesian Hot & Cold Water Co., was a water company organized under the laws of the state, and was controlled by the provisions of secs. 2710 to 2713 inclusive, of the Revised Statutes of 1887, in force at the time of its incorporation. (Price v. Riverside Land & Irrigating Co., 56 Cal. 431; Crow v. San Joaquin Irr. Co., 130 Cal. 309, 62 P. 562; Fresno Canal Co. v. Parke, 129 Cal. 437, 62 P. 87; Merrill v. Southside Irr. Co.,...

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