I dissent. In my opinion the nonsuit was properly granted on the first ground stated in the motion, viz., that the purpose for which condemnation is sought is not one of the public uses in behalf of which, under section 1238 of the Code of Civil Procedure, the right of eminent domain may be exercised.
The majority of the court has reached the conclusion that the plaintiff's claim may be sustained under either subdivision 3 or subdivision 4 of section 1238 With respect to subdivision 4 ("the supplying of mines and farming [in] neighborhoods with water") it may be said that the plaintiff itself makes no contention that its complaint stated or that its proof established a right under this subdivision. The complaint plainly shows that it was framed with the intent of making a case under subdivision 3, and the briefs of the appellant virtually concede that a claim of right to condemn under subdivision 4 was not presented and is not involved. Under these circumstances, this point may be passed with the statement that I believe the concession to have been no more than was required by the state of the record.
The question, then, is whether the proof supported the allegations of the complaint that plaintiff intends to devote the water in question to the purposes of sale, rental, and distribution to the inhabitants of the counties of Fresno, Merced, and Stanislaus. It appears that plaintiff has been furnishing water and intends to continue to furnish it to a large part of the territory and a considerable number of the inhabitants on *Page 238 the west side of the San Joaquin River. There is no pretense that it has brought the water, or intends, or is able to do so, within the reach of the extensive territory and large population on the other side of the river, within the counties named. Without going any further into particulars, it may be said that the territory which plaintiff is able to furnish with water constitutes far less than one-half of the area of each county named, indeed, far less than one-half of the irrigable lands of any of said counties. On this state of facts, I think that the district court of appeal for the third appellate district, in which this appeal was originally pending, was right in expressing the view that in order to make out a case under subdivision 3 of section 1238, "the canals and other contrivances used by plaintiff should be so located and constructed and its business so conducted as to make the water available generally to the inhabitants of these counties for the purposes stated."
The language of the statutory provision under consideration is this: "Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: . . . 3. . . . ponds, lakes, canals, aqueducts, reservoirs, tunnels, flumes, ditches, or pipes for conducting or storing water for the use of the inhabitants of any county, incorporated city, or city and county, village or town . . ." The contention of the appellant, sustained by the majority opinion, is, in effect, that a public service corporation engaged in the sale, rental, and distribution of water within one or more counties, which is ready to furnish, and has canals and works sufficient to furnish such water to so great a number of the inhabitants of such county or counties as to make the character of the use public rather than private, is engaged in the sale, rental, and distribution of water "for the use of the inhabitants of any county." In other words, the statute, thus construed, authorizes the condemnation of property in behalf of ponds, lakes, canals, etc., for constructing or storing water for the use of any number of people residing upon any number of parcels of land anywhere within the state, provided only that the use be of a public character. For, since the entire area of the state is divided into counties, it is apparent that canals or other conduits devoted to supplying water to any of the inhabitants of the state are used for the *Page 239 inhabitants of one or more counties. This construction seems to me to make meaningless most of the language in the part of the subdivision under consideration. If all that was intended to be required was that the use should be public, there would have been no need of inserting the words "incorporated city, or city and county, village or town," or, indeed, the word "county." This is, of course, contrary to the well settled rule requiring a court in construing a statute to give meaning and effect to every word contained in it, if reasonably possible.
Section 1238 does not provide that the right of eminent domain may be exercised in behalf of every public use. What it does is to enumerate certain public uses, and to declare that the power of eminent domain may be exercised in behalf of the particular uses enumerated. That the corporation plaintiff is in the control of a public service is not conclusive upon the question of its right to exercise the power of eminent domain. It must appear in addition that the statute has authorized the exercise of this power for the particular purpose for which it is sought to be exercised.
It must be assumed that the legislature had some purpose in limiting the right of eminent domain to the public use of conducting or storing water "for the use of the inhabitants ofany county, incorporated city, or city and county, village ortown." The idea in the minds of the lawmakers evidently was that the right of eminent domain in aid of the furnishing of water was not to be granted in every case of a public use, but only where the water was for the use of the inhabitants of the governmental subdivisions enumerated. It is of the essence of a public service that the service shall be compellable (to the extent of its capacity and subject to reasonable restrictions) by all the members of the community to whose use the subject of the service is appropriated. (Wyman on Public Service Corporation, sections 273, 344; Lux v. Haggin, 69 Cal. 269, 306, [4 P. 919, 10 P. 674].) When, then, the statute speaks of furnishing water to the inhabitants of a county, city, city and county, village or town, it contemplates a service available to the inhabitants, generally, of the respective governmental territories, not a service to such part of the territory as may be selected by a water company. The inducing cause for granting the right was the benefit of the *Page 240 public to be served, rather than the advantage of the individual or corporation seeking to supply water. The existence of the right, by the language of the statute, was made to depend upon the extent of the public to be so served. This mode of measurement is totally destroyed and much of the language of the subdivision deprived of any meaning, by holding that the statute authorizes the exercise of eminent domain in behalf of canals, etc., for supplying water to the inhabitants of any part, so extensive as to escape the objection that the use is private, of a county, a city, a village, or a town. Let us test the question by supposing a complaint in which the plaintiff alleges that it is engaged in furnishing water to the inhabitants of a supervisorial district and that it desires to condemn certain private water-rights in order to supply such use. Assuming the service to be such as to constitute the use a public one, could it be contended that, because the inhabitants of the district are inhabitants of a county, the right of eminent domain is conferred by the statute under consideration? It seems to me that the question carries its own answer and that answer is one that requires the affirmance of the order appealed from.
On all other matters discussed in the main opinion I agree with the views therein expressed.
Rehearing denied.
In denying a rehearing, the court in Bank rendered the following opinion on December 20, 1912: