Public Utilities Commission v. Natatorium Co.

McCARTHY, J.,

Concurring. — Respondents contend that, even if the hot water in question was originally private water owned by appellant, it has been dedicated to public use by the acts and conduct of appellant. It is true that property originally private can be dedicated to the public by the acts and conduct of the owner and. thus burdened with a public duty. But “Dedication of the property of a corporation to public use is never presumed without evi*309dence of unequivocal intention.” (Stoehr v. The Natatorium Co., 34 Ida. 217, 200 Pac. 132.)

‘ ‘ Whether one engaged in the business of supplying water is engaged in a ‘public utility’ business depends on whether he held himself out expressly or impliedly as engaged in the business of supplying water to the public or to a limited portion of the public, such, for example, as could be served by his system or whether he merely held himself out as serving or ready to serve particular individuals as a matter of accommodation or for reasons peculiar and particular to them.” (Van Hoosear v. Railroad Com., 184 Cal. 553, 194 Pac. 1003.)

To be sure a secret or hidden intention cannot govern. The intention is inferred from the acts and conduct of the party. (Hanson v. Proffer, 23 Ida. 705, 132 Pac. 573.) The evidence in this case shows that the intention of the appellant, expressed in its acts and conduct, was not to unreservedly devote the surplus of hot water to the public or any portion thereof, but to permit individuals chosen by it, and on terms fixed by it, to use the hot water under a system of yearly rentals. Whenever it desired, it exercised control as to who should be granted the use of the water, and as to taking it away. I do not find evidence of an unequivocal intention to devote it to public use.

It is next contended that appellant is a public utility, irrespective of its intention, by operation of the provisions of the constitution and statutes of this state. The following are the provisions which should be considered:

Const., art. 15, 1. “The use of all waters now appropriated, or that may hereafter be appropriated for sale, rental or distribution; also of all water originally appropriated for private use, but which after such appropriation has heretofore been, or may hereafter be sold, rented, or distributed, is hereby declared to be a public use, and subject to the regulation and control of the state in the manner prescribed by law.

“2. The right to collect rates or compensation for the use of water supplied to any county, city, or town, or water *310district, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law.

“3. The right to divert and appropriate the unappropriated waters of any natural stream to beneficial uses, shall never be denied. Priority of appropriation shall give the better right as between those using the water; but when the waters of any natural stream are not sufficient for the ser-vice of all those desiring the use of the same, those using the water for domestic purposes shall (subject to such limitations as may be prescribed by law) have the preference over those claiming for any other purpose; and those using the water for agricultural purposes shall have preference over those using the same for manufacturing purposes. And in any organized mining district those using the water for mining purposes or milling purposes connected with mining, shall have preference over those using the same for manufacturing or agricultural purposes. But the usage by such subsequent appropriators shall be subject to such provisions of law regulating the taking of private property for public and private use, as referred to in section 14 of Article I of this Constitution.”

C. S., sec. 5556. “Water being essential to the industrial prosperity of the state, and all agricultural development throughout the greater portion of the state depending upon its just apportionment to, and economical use by, those making a beneficial application of the same, its control shall be in the state, which, in providing for its use, shall equally guard all the various interests involved. All the waters of the state, when flowing in their natural channels, including the waters of all natural springs and lakes within the boundaries of the state are declared to be the property of the state, whose duty it shall be to supervise their appropriation and allotment to those diverting the same therefrom for any beneficial purpose, and the right to the use of any of the waters of the state for useful or beneficial purposes is recognized and confirmed; and the right to the use of any of the public waters which have heretofore been *311or may hereafter be allotted or beneficially applied, shall not be considered as being a property right in itself, but such right shall become the complement of, or one of the appurtenances of, the land or other thing to which, through necessity, said water is being applied; and the right to continue the use of any such water shall never be denied or prevented from any other cause than the failure on the part of the user thereof to pay the ordinary charges or assessments which may be made to cover the expenses for the delivery of such water.”

C. S., sec. 5572. “The department of reclamation is hereby prohibited from issuing or granting permits to divert or appropriate the waters of any lake not exceeding five acres in surface area at high water mark, pond, pool or spring in this state, which is located or situated wholly or entirely upon the lands of a person or corporation, except to the person or corporation owning said land, or with his or its written permission, executed and acknowledged as required for the conveyance of real estate.”

Article 15 of the constitution must be read as a whole, l So reading it I conclude that section 1 thereof applies only-to such waters as are public waters, owned by the state of!: Idaho. Considering article 15 and the above-mentioned’ statutes, I conclude that the ownership of water, by the-state, and the resulting right of appropriation, are confined to the waters of natural streams, either surface or subterranean, and do not extend to subterranean springs or pereolating water, situated entirely on privately owned land, and not flowing in a natural channel. Water of the latter sort is part of the soil and belongs to the owner of the land. (King v. Chamberlin, 20 Ida. 504, 118 Pac. 1099; Bruening v. Dorr, 23 Colo. 195, 47 Pac. 290, at 292, 35 L. R. A. 640; Vanderwork v. Hewes et al., 15 N. M. 439, 119 Pac. 567.) If anything to the contrary is to be found in Le Quime v. Chambers, 15 Ida. 405, 98 Pac. 415, and Bower v. Moorman, 27 Ida. 162, Ann. Cas. 1917C, 99, 147 Pac. 496, those decisions should be modified to the extent herein indicated.

*312One who seeks to subject another to the jurisdiction of the Public Utilities Commission on the ground he has sold or rented public waters of the state has the burden of showing that the waters are of that character. The evidence in this case as to the nature of the source of the hot water in question is meager. Such evidence as there is does not show to my mind that the source is a subterranean stream with a natural channel, but rather that it is a spring, or well of percolating water, located entirely beneath appellant’s land. I conclude that the evidence fails to show that appellant has rented or sold public waters of the state. The evidence is, therefore, insufficient to support the finding that it is a public utility by operation of the constitution and statutes.

The question suggested in several places in the record as to whether appellant can deny individual water users the continued right to use the hot water is not necessarily involved in this case. The determination of whether appellant is or is not a public utility is not decisive of that question. It may depend upon the individual transactions the effect of which in that connection we are not called upon to decide.