Opinion
Edgerton & Dohs, of St. Paul, Minn., and Carey & Kerr and Charles A. Hart, all of Portland, Or., for plaintiffs.
George M. Brown, Atty. Gen., and J. O. Bailey, Asst. Atty. Gen., of Salem, Or., and B. L. Eddy, or Roseburg, Or., for defendants.
BEAN, District Judge (after stating the facts as above).
The evidence as taken on the trial shows clearly that neither the plaintiff nor its predecessors in interest were ever engaged in the business of selling or furnishing water to all who might apply within a given area, nor did either of them ever hold themselves out as ready and willing to do so. They were engaged in selling their own land, agreeing to furnish water on certain terms and conditions to the purchasers, and no others. They merely undertook to furnish water in fulfillment of a private contract with certain individuals selected by them, and not to
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the public generally, and therefore were not public utilities, and subject to the jurisdiction of the Public Service Commission. See opinion on motion to dismiss (247 F. 183).
The fact that under their articles of incorporation the several companies might have engaged in the business of a public utility does not ipso facto make them so. The chartered authority did not mark the nature of the operating companies. It is merely a naked authority to do business, but until it is pursued in a certain way it did not make the companies public utilities. Del Mar Water, Light & Power Co. v. Eshleman, 167 Cal. 666, 140 P. 593. Nor does the fact that the notice of appropriation of the water states that it was appropriated for 'general rental, sale and disposition for the purposes of irrigation, etc.,' alone make the appropriating corporation or its successor in interest a public utility. For, as stated by the Supreme Court of California in a similar case (Thayer v. Cal. Development Co., 164 Cal. 117, 128 P. 21):
'The property does not become impressed with a public use or trust until after the owner has first acquired it and then dedicated it to the use. The acts of acquisition and of dedication, respectively, are distinct from each other. Technically the latter must follow the former, and cannot precede or accompany it. An 'appropriation of water,' under the Code, is therefore not ipso facto a dedication or appropriation to public use. The additional act of dedication is as necessary to the creation of a public use in a water right so acquired as it would be if the right was acquired by conveyance or in any other manner, or as in the case of any other property dedicated to public use.'
It follows, therefore, that the Public Service Commission was without jurisdiction to fix the rates to be charged by the plaintiff, and plaintiff is entitled to decree as prayed for in the complaint.