210 VALUATION, DEPRECIATION AND THE RATE-BASE
water shall not be 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 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 order 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. ov
“Tt 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. . . .
“Tt 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 vs.
Railroad Commission, Jan. 20, 1914 (47 Cal. 201)), 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 dealing with
water ¢ appropriated for sale’ it means that there should be
nothing to sell. (See San Diego Water Co. vs. San Diego,
118 Cal. 556, 567; 50 Pac. Rep. 633; 38 L. R. A. 460; 62 Am. St.
Rep. 261; Fresno Canal and Irrigation Co. vs. Park, 129 Cal.
437, 443; 62 Pac. Rep. 87; Stanislaus Water Co. vs. Bachman,
152 Cal. 716; Leavitt vs. Lassen Irrigation Co., 157 Cal. 82.)”
According to this decision the water-right must receive the
same consideration as other property when rates are to be fixed.