[233 U.S. 454, 455] Messrs. Edward F. Treadwell, Garret W. McEnerney, Frank H. Short, Aldis B. Browne, and Alexander Britton for appellant.
Messrs. James P. Langhorne, L. J. Maddux, Parker S. Maddux, Denver S. Church, M. F. McCormick, and H. S. Shaffer for appellees.
Mr. Justice Holmes delivered the opinion of the court:
This is a bill to restrain the enforcement of orders passed by the boards of supervisors of the three defendant counties, Stanislaus, Fresno, and Merced, establishing water rates to be charged by the plaintiff, the appellant; the ground of the bill being that the orders deprive the plaintiff of its property without due process of law. By a statute of March 12, 1885, the boards are authorized to fix these rates for their several counties, but so that the returns to the parties furnishing the water shall be not less than 6 per cent upon the value of the 'canals, ditches, flumes, chutes, and all other property actually used and useful to the appropriation and furnishing of such water.' The rates when fixed are binding for one year and until established anew or abrogated. The bill concerns rates fixed in 1907, and the question before the court has been narrowed to a single issue. If the plaintiff is entitled to 6 per cent upon its tangible property alone it is agreed that the orders must stand. But if the plaintiff has water rights that are to be taken into account, the rates fixed will fall short of giving it what it is entitled to and must be set aside. The circuit court dismissed the bill (191 Fed. 875), and on this appeal figures are immaterial, the only question being whether the principle adopted is right. [233 U.S. 454, 459] It was suggested, to be sure, at the argument, that it does not appear that the plaintiff offered any evidence as to water rights at the hearing before the supervisors, and therefore that it ought not to be allowed to complain now that nothing was allowed for them. But this evidently is an afterthought. In general, a party may wait until a law is passed or regulation is made, and then insist upon his constitutional rights. Prentis v. Atlantic Coast Line Co. 211 U.S. 210, 227 , 229 S., 53 L. ed. 150, 159, 160, 29 Sup. Ct. Rep. 67. This we understand to be the view of the California courts as to these very boards. Spring Valley Waterworks v. San Francisco, 82 Cal. 286, 315, 6 L.R.A. 756, 16 Am. St. Rep. 116, 22 Pac. 910, 1046; San Diego Water Co. v. San Diego, 118 Cal. 558, 564, 38 L. R.A. 460, 62 Am. St. Rep. 261, 50 Pac. 633. Moreover, as the defendants contend that the plaintiff is entitled to no compensation for water rights, to offer evidence would have been an idle form.
It is not disputed that the plaintiff has a right as against riparian proprietors to withdraw the water that it distributes through its canals. Whether the right was paid for, as the plaintiff says, or not, it has been confirmed by prescription and is now beyond attack. It is not disputed, either, that if the plaintiff were the owner of riparian lands to which its water was distributed, it would have a property in the water that could not be taken without compensation. But it is said that as the plaintiff appropriates this water to distribution and sale, it thereby dedicates it to public use under California law, and so loses its private right in the same. It appears to us that when the cases cited for this proposition are pressed to the conclusion reached in the present case, they are misapplied. No doubt it is true that such an appropriation and use of the water entitles those within reach of it to demand the use of a reasonable share on payment. It well may be true that if the waters were taken for a superior use by eminent domain those whose lands were irrigated would be compensated for the loss. But even if the rate paid is not to be determined as upon a purchase of water from the plain- [233 U.S. 454, 460] tiff, still, at the lowest, the plaintiff has the sole right to furnish this water, the owner of the irrigated lands cannot get it except through the plaintiff's help, and it would be unjust not to take that fact into account in fixing the rates. We are not called upon to decide what the rate shall be, or even the principle by which it shall be measured. But it is proper to add a few words.
The declaration in the Constitution of 1879 that water appropriated for sale is appropriated to a public use must be taken according to its subject-matter. The use is not by the public at large, like that of the ocean for sailing, but by certain individuals for their private benefit respectively. Thayer v. California Development Co. 164 Cal. 117, 128, 128 Pac. 21; Fallbrook Irrig. Dist. v. Bradley, 164 U.S. 112, 161 , 41 S. L. ed. 369, 389, 17 Sup. Ct. Rep. 56. The declaration, therefore, does not necessarily mean more than that the few within reach of the supply may demand it for a reasonable price. The roadbed of a railroad is devoted to a public use in a stricter sense, yet the title of the railroad remains, and the use, though it may be demanded, must be paid for. In this case it is said that a part of the water was appropriated before the Constitution went into effect, and that a suit now is pending to condemn more as against a riparian proprietor, for which, of course, the plaintiff must pay. It seems unreasonable to suppose that the Constitution meant that if a party, instead of using the water on his own land, as he may, sees fit to distribute it to others, he loses the rights that he has bought or lawfully acquired. Recurring to the fact that in every instance only a few specified individuals get the right to a supply, and that it clearly appears from the latest statement of the supreme court of California ( Palmer v. Railroad Commission, January 20, 1914 [-- Cal. --, 138 Pac, 997]) that the water when appropriated is private property, it is unreasonable to suppose that the constitutional declaration meant to compel a gift from the former owner to the users, and that in [233 U.S. 454, 461] dealing with water 'appropriated for sale' it meant that there should be nothing to sell. See San Diego Water Co. v. San Diego, 118 Cal. 556, 567, 38 L.R.A. 460, 62 Am. St. Rep. 261, 50 Pac. 633; Fresno Canal & Irrig. Co. v. Park, 129 Cal. 437, 443, et seq. 62 Pac. 87; Stanislaus Water Co. v. Bachman, 152 Cal. 716, 15 L.R.A.(N.S.) 359, 93 Pac. 858; Leavitt v. Lassen Irrig. Co. 157 Cal. 82, 29 L.R.A.(N.S.) 213, 106 Pac. 404.
Mr. Justice Pitney did not sit in this case.