Salt River Valley Canal Co. v. Nelssen

• Decision Date: 30 March 1906
• Docket Number: Civil 915
• Citation: 85 P. 117,10 Ariz. 9
• Parties: SALT RIVER VALLEY CANAL COMPANY, a Corporation, Defendant and Appellant, v. PETER NELSSEN, Plaintiff and Appellee
• Court: Arizona Supreme Court

85 P. 117

10 Ariz. 9

SALT RIVER VALLEY CANAL COMPANY, a Corporation, Defendant and Appellant, v. PETER NELSSEN, Plaintiff and Appellee

Civil No. 915

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the Third Judicial District in and for the County of Maricopa. Edward Kent Judge. Modified.

The facts are stated in the opinion.

C. F Ainsworth, for Appellant.

E. W Lewis, for Appellee.

OPINION

NAVE, J.

-- Peter Nelssen is the owner of lands lying under the Salt River Valley Canal which are barren without the artificial application of water. He is neither a stockholder nor owner of a water-right in the Salt River Valley Canal Company, but by renting water-rights he has obtained, for a number of years, service of water from the canal of this company for the irrigation of his lands. The policy sought to be maintained by the Salt River Valley Canal Company of serving with water only those who own or lease water-rights, is described in previous decisions of this court (Slosser v. Salt River Valley Canal Company, 7 Ariz. 376, 65 P. 332, and Gould v. Maricopa Canal Company, 8 Ariz. 429, 76 P. 598), and needs no description or explanation in this opinion.

In the fall of 1903, without purchasing or renting a water-right, Nelssen demanded of the company service of water upon his land, tendering to the company the price charged those who own or rent water-rights. The company refused to deliver the water unless plaintiff should enter into a contract for the purchase of a water-right. Nelssen, averring his willingness to pay reasonable charges for the service of such water, and paying into court the amount theretofore tendered, brought suit against the company to compel it to deliver the water demanded. Pending final judgment, he prayed a temporary mandatory injunction requiring the company to deliver water to him for use upon his ranch, at such price as should be fixed by the court. This injunction was granted; a price was fixed by the court for the service, and paid to the company by plaintiff. Plaintiff then filed a supplemental complaint averring that at the hearing upon the application for temporary injunction defendant had offered to deliver water to plaintiff at an exorbitant price much in excess of that charged to its stockholders and water-right owners, and in excess of the price fixed by the court in the temporary injunction; that the amount paid by plaintiff and received by defendant, as so fixed, was unreasonably high and unjust; and praying judgment upon final determination of the suit, for the repayment to him of the excess paid above a reasonable price. Upon final hearing judgment was rendered for the plaintiff perpetually enjoining the defendant from preventing the flow from the Salt River through its canal to plaintiff's premises of the amount of water prayed for, subject to payment by plaintiff of the company's reasonable charge for the diversion and carriage of water; and also decreeing the recovery by plaintiff from defendant of forty-five dollars found by the court to be the excess over a reasonable price paid for service of water during the pendency of the litigation.

Numerous errors are assigned by appellant, which, being grouped, raise five points. Under one of these appellant seeks a reconsideration and disapproval of the principles set forth by this court in the Slosser and Gould cases, supra, underlying the service of water by such companies as appellant. After consideration, in the light of appellant's argument, of the views expressed in the Gould case, and in the Slosser case as modified by the opinion in the Gould case, we perceive no reason to disapprove thereof, but reaffirm them.

The second point is that the court erred in granting a mandatory writ of injunction compelling the company to serve water to plaintiff upon payment of a rate fixed by the court, pending final judgment. If the granting of this order was an erroneous exercise of power the error would not be ground for reversing or modifying the final judgment, upon the rendition of which the interlocutory order expired by its own limitation. Therefore we need not pass upon the point.

The remaining points raised go to that portion of the judgment decreeing a recovery by plaintiff of the excess over a reasonable price paid by him for the service of water. The jurisdiction of the court in rendering such judgments, questions permitted over objection to be asked by plaintiff of witnesses to support his contention that the price paid by him was in excess of a reasonable price, and the court's finding of fact, are each attacked.

Appellant contends that the fixing of a rate for the rendition of services by a public-service corporation is a legislative act, and not judicial. It is necessary to apply a distinction which we may accurately make by adopting the language of the supreme court of the United States, in Interstate Commerce Commission v. Cincinnati etc. R.R. Co., 167 U.S. 479, 499, 17 S.Ct. 896, 900, 42 L.Ed. 243: "It is one thing to inquire whether the rates which have been charged and collected are reasonable -- that is a judicial act; but an entirely different thing to prescribe rates which shall be charged in the future -- that is a legislative act." The court did not seek to fix a rate for future service by appellant, but exercised jurisdiction to determine whether the rate was unreasonably high which had been collected by appellant from Nelssen for service of water pending a final judgment which rate was paid by Nelssen under an order of the court and, therefore, presumably without acquiescence in the amount thereof. A public-service corporation does not enjoy its franchise solely for the profit of its promoters or stockholders. While it uses the franchise there rests upon it a duty to render to the public, at a reasonable rate, the services for which it was created. Munn v. Illinois, 94 U.S. 113, 126, 134, 24 L.Ed. 77. It is clear in reason, and is well settled by precedents that where statutes prescribe maximum rates, one from whom a rate has been exacted in excess of the legal maximum, may sue for the excess. It is equally well supported by reason that where statutes do not define a maximum lawful rate if prices are exacted which, in the light of all the facts to be considered, are unreasonably high, one who pays such prices under protest or under such circumstances as do not amount to an acquiescence in the charge, may by suit recover the excess paid over a reasonable price; and we so hold. Whether one who has acquiesced in the...