Dissenting. — On October 28, 1920, the Public Utilities Commission of the state of Idaho, hereafter re*321ferred to as the commission, issued an order requiring appellant to show cause why it should not be stopped from increasing its rates for the users of hot water. The case brought by Mrs. Cruza Arostegui and Juan Yribar, complainants, against the Natatorium Company was consolidated with the order ta show cause and the city of Boise, Edward Stein and Jessie S. Hurtt as users of hot water intervened. On November 15, 1920, appellant, appearing specially, moved to dismiss the proceedings “on the ground that said hot-water service is not a public utility, and the commission is without jurisdiction.” Proceedings in this case were interrupted by an injunction granted by this court restraining the commission from proceeding until a determination of the appeal in the case of William Stoehr v. Natatorium Co., 34 Ida. 217, 200 Pac. 132. On the determination of that ease the injunction was dissolved. The commission then proceeded to take testimony on the motion to dismiss, found that the facts developed in the record “show the defendant to be a public utility in so far as the hot-water service has been furnished and distributed for heating and domestic use,” and entered an order denying said motion. From said order appellant has brought the case to this court on appeal.
Appellant is the owner of certain wells just outside the city limits of Boise and is also the owner of a bathing resort within said city known as the Natatorium. These wells were drilled in the year 1890 by Hosea B. Eastman, Timothy Regan, W. H. Ridenbaugh and J. W. Cunningham, who thereby obtained a flow of hot water amounting to about 800,000 gallons per day. In the following year a corporation known as the Artesian Hot and Cold Water Company was organized, to which said wells were sold, and said corporation thereupon erected the bathing establishment called the Natatorium and conveyed thereto by means of a pipe-line a portion of the hot water from said wells. In 1902 the wells and the hot-water system were conveyed to a West Virginia Corporation, known as the Boise Artesian Hot and Cold Water Company, and in 1915 this cor*322poration conveyed the same property to an Idaho corporation called the Boise Artesian Hot and Cold Water Company. Soon after the opening of the Natatorium it was found that more hot water was produced than was required for that establishment and the company then began the sale and distribution of a portion of the surplus and the collection of rates and compensation therefor. About the year 1907 the Natatorium was sold by the owners of the hot-water wells to the Boise Railroad Company and was owned and operated by said railway company for about 10 years thereafter. The deed to the Natatorium provided for the free use of hot water from said wells “sufficient to maintain the Natatorium on said premises as a bathing resort in like manner as the same is and heretofore has been conducted,” then described the size of pipe that should govern the flow of hot water. While the Natatorium remained in the hands of the railroad company the owners of the wells increased their flow to the extent of about 400,000 gallons per day by installing pumps. There is testimony in the record to the effect that this increase was sought and used for the purpose of supplying additional purchasers of hot water. All these water corporations by their charters were authorized to carry on the business of selling and distributing hot water just as that business has been carried on from the beginning, and just as appellant carried it on since September, 1920, when it became/ the owner of said wells and hot-water system.
The water is distributed to appellant’s customers by means of a main a little over two miles in length extending from a point near the Natatorium along Warm Springs Avenue and Idaho Street, to a point on Idaho Street 120 feet west of the east line of 13th Street and through several miles of laterals connected with said main. The entire system, up to the property lines of the customers, is owned by appellant. It is conceded that appellant and its predecessors in interest, since the installation of this hot-water system in Boise, now more than 25 years ago, have been *323and are now collecting rates and compensation for the hot water so distributed to customers through said system.
It appears from the evidence that on November 25, 1899, the Artesian Hot and Cold Water Company, Limited, the first corporation to own and operate said wells and hot-water system, filed for record in the office of the recorder of Ada county, Idaho, a notice of water right claim as follows:
“To Whom It Mat Concern?
“Notice is hereby given that the Artesian Hot and Cold Water Company, Limited, a corporation created and existing under the laws of the state of Idaho, with its principal place of business at Boise City, Ada County, in the said state, heretofore on the 5th day of November, 1894, appropriated and is the owner and claimant of the following described water rights, to wit: The waters flowing from three artesian wells and each and every of said wells, to the extent of four and two hundred and seventy-three one-thousandths cubic feet per second of time; which said wells through and by means of which said water is diverted and appropriated are situated in the southeast quarter of the southeast quarter of the southwest quarter of Section twelve (12) in Township three (3) north, Range two (2) east of Boise Meridian, in Ada County, State of Idaho.
“That the location and specific uses for which said water is claimed are for domestic and for bathing and heating purposes and to warm the waters of a large plunge or swimming bath at a place of public resort, belonging to said company, known as the ‘Natatorium,’ situated about three thousand feet in a southwesterly direction from said wells; and also for sale for domestic uses and for bathing and heating purposes, and for all other purposes for which hot water may be used, and for irrigating and sprinkling, in Boise City in said County and along or near the line of the conduit or pipes used in conveying said water from said wells to and through the streets and alleys of Boise City, commencing at each of said wells and running north of west about one hundred and sixty feet through separate *324pipes to a common main pipe; thence south 70 degrees, 15 minutes west 2514 feet to the southwest side of the public road known as Warm Springs Avenue; thence Westerly along said Avenue, 300 feet to a tee in said pipe by which a part of said water is diverted and runs in a southwesterly direction, 300 feet to said Natatorium building; and from said tee running in a Westerly direction along said Warm Springs Avenue, 5608 feet to the junction of Idaho Street in Boise City; thence westerly along Idaho Street, 5363 feet to a point 120 feet East of the east line of Thirteenth Street and about 13945 feet from said wells; together with all the lateral and distributing pipes and conduits connecting said main conduit with the buildings and premises where said water is or may be used.”
The recording of this notice seems to have been for the purpose of complying with an act of the Idaho legislature, Sess. Laws 1899, p. 380, some of the provisions of which are /as follows:
“Sec. 2. The right to the use of the waters of rivers, streams, lakes, springs, and of subterranean waters, may be acquired by appropriation.”
“Sec. 10. All ditches, canals, or other works heretofore made, constructed, or provided, by means of which the waters of any stream have been diverted and applied to any beneficial use, must be taken to have secured the right to the waters claimed to the extent of the quantity which said works are capable of conducting; and not exceeding the quantity claimed without regard to, or compliance with, the requirements of this act; .... ”
“Sec. 12.....All persons or corporations owning or claiming any water right or water rights must, within six months after this Act becomes a law, record with the recorder of the county a notice of the amount of the claim of appropriation, location and specific use, and the date of such appropriation. ’ ’
At the time of the recording of said notice said corporation was and for several years past had been engaged in the sale and distribution of said hot water to the City of *325Boise and its citizens and collecting rates and compensation therefor, and such business has since the filing of said notice been continuously carried on in the same way by said corporation and its successors in interest down to and including the time of the hearing by said commission of the motion to dismiss.
The record shows that the number of purchasers of hot water before the pumps were installed was from 60 to 80, but that at the time of the hearing this number had grown to 276, 173 of whom were heating customers, 81 summer and 22 winter domestic users. While appellant claims to have made no sales of hot water for a longer period than one year, the record clearly shows that no contract for a definite period was made in any ease, that as a rule customers were taken on without mention of a definite period of service, that in some instances assurance was given that the customer would never be deprived of the service so long as he desired it and was willing to pay for it, and that no customer who was receiving satisfactory service and who observed the regulations of the company was ever cut off. While it appears true that appellant did not solicit customers in the ordinary sense, it had a waiting list who according to men long connected with the management of the system, were supplied with hot water in the order in which their applications were registered as soon as the company found means of supplying the desired service. Thus it held itself out as not only willing to serve, but as desirous of serving, that portion of the general public living within such distances from its main as to make its hot water service satisfactory to both. buyer and seller.
The sole question upon which this case depends is whether or not said hot water over and above the amount necessary to supply the Natatorium has been dedicated to a public use.
Appellant denies that there has been such dedication and insists that from the very beginning of the enterprise the owners have steadfastly maintained that such use is private and that they have never at any time performed any *326acts that would convert the said use from a private to a public use. Respondents, on the other hand, contend that notwithstanding the protestations of appellant and its predecessors that the sole use of the waters sold to customers is and has been private, the legal effect of the acts of appellant and its predecessors is to make such use of said hot water a public use. The essential facts being admitted, the decisive question must be answered by reference to the constitution of this state. Sections of the state constitution applicable to this case are found in article 15 and are as follows:
“Sec. 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.
“Sec. 2. The right to collect rates or compensation for the use of water supplied to any county, city, or town, or water district, or the inhabitants thereof, is a franchise, and cannot be exercised except by authority of and in the manner prescribed by law.”
“Sec. 6. The legislature shall provide by law the manner in which reasonable maximum rates may be established to be charged for the use of water sold} rented or distributed for any useful or beneficial purpose.”
The fact that appellant’s predecessors in interest were authorized by their several charters to carry on the business of selling and distributing hot water would not be sufficient alone to impress the use in controversy with the character of a public use; neither would the fact that the original corporate owner of said hot water wells gave the notice of its claim as set out above, stating that one of the specific uses for which said hot water was claimed was “for sale for domestic uses and for bathing and heating purposes and for all other purposes for which hot water may be used,” *327be sufficient alone to impress a public use upon said water. But when in the exercise of powers conferred by its charter the original corporation, the Artesian Hot and Cold Water Company, Limited, entered upon the sale and distribution of such hot water and collected rates and compensation therefor, and when, while it was actually so engaged, it filed said notice for record declaring that said waters were claimed for the public uses set out in said notice, namely, “for sale for domestic uses and for bathing and heating purposes,” and when it and its successors, including appellant, for more than 20 years thereafter continuously carried on said business of selling and distributing hot water to Boise City and its citizens through miles of pipe laid in the streets of said city, collecting rates and compensation therefor, how can they be excepted from the plain language of the constitution above cited? This court has held that under the constitution of this state when the waters of the state are appropriated for sale, rental. or distribution, such use becomes a public use and such waters are thereby dedicated to the public. (Wilterding v. Green, 4 Ida. 773, 45 Pac. 134; Childs v. Neitzel, 26 Ida. 116, 141 Pac. 77.)
In the recent case of Stoehr v. Natatorium, Co., supra, this court stated the well-settled rule that “A corporation becomes a public service corporation, and therefore subject to regulation as a public utility, only when and to the extent that the business of such corporation becomes devoted to a public use.” (Thayer v. California Development Co., 164 Cal. 117, 128 Pac. 21.)
In the same case this court also said: “Dedication of the property of a corporation to public use is never presumed without evidence of unequivocal intention.”
In the case of Hansen v. Proffer, 23 Ida. 705, 711, 132 Pac. 573, speaking of the dedication of a street, this court said: “We recognize the fact that the first essential of a valid dedication is an intention to do so on the part of the owner, but the intention to which the court gives heed is *328not an intention hidden in the mind of the land owner, but an intention manifested by his acts.”
If the use of the water from these wells was a private one no reason can be seen for setting forth in the notice filed for record in 1899 that the water was claimed for a use made public by the constitution.
It may be admitted that the original appropriation of the hot water was for private use, namely, that it was for use in connection with the Natatorium. If the owners had continued to apply the water to such use and had made no use' other than private of the surplus no question as to the dedication of such surplus could have arisen. No power known to the law could have compelled the owners to lay' mains and sell and distribute this surplus water and accept compensation therefor. The owners were not content to do this. Seeing the opportunity to turn to their advantage what would otherwise go to waste, as intelligent business men they naturally proceeded to sell and distribute such surplus to as many customers as their limited supply would accommodate and to collect compensation therefor. They must be conclusively presumed to have known the provisions of the law above quoted with regard to such acts and to have intended to bring the surplus water within the terms of the constitution. As the demand for natural hot water grew they met it with an increased flow of 400,000 gallons per day by means of pumps. This increase appears to have been sought for no other purpose than for sale. In the book of regulations put out by the owners of the hot water in 1918 it is stated that “when material prices are again normal we will prospect for more water.” No other purpose for such prospecting appears from the record except to sell any additional water that may be discovered to many customers, who could doubtless be found.
It is difficult to conceive of acts which would more clearly bring this surplus water within the constitutional terms than those that have been performed by appellant and its predecessors through a long series of years. They have not acted under compulsion. They have voluntarily done *329for years and are now doing the things that are declared by the constitution of this state to fix upon the use of this surplus water the character of a public use.
In the case at bar can appellant’s denial of an intention to dedicate that portion of the hot water in controversy prevail over the fact that it deliberately and intentionally applied such water to a use which, under the constitution of this state, was then and is now a public use and that it is'continuing to so apply it up to the present time? If additional water should be found other customers will be sought and found and other streets utilized for the laying of mains and laterals. If the use is wholly private, what will appellant say if the city of Boise objects to the further extension in its streets of a plant devoted wholly to private use?
In this case there is no claim of a dedication of the entire output of the hot-water wells, but only of that portion over and above the amount necessary for the Natatorium, which has been subjected to sale and distribution by appellant and its predecessors in interest, for which for many years they have collected rates or compensation. It is not essential to a valid dedication that the entire supply of hot water belonging to appellant shall be included, but a portion thereof may be dedicated to public use and the remainder reserved for private use. (Del Mar Water L. & P. Co. v. Eshleman, 167 Cal. 666, 140 Pac. 591; Allen v. Railroad Com., 179 Cal. 68, 8 A. L. R. 249, 175 Pac. 466.)
It is admitted by all parties that the supply of hot water is limited and that it would not be possible at present to serve all persons in the city of Boise who probably desire such service, but this fact does not prevent a dedication to such limited portion of the public as has been or may be served. (Lanning v. Osborne, 76 Fed. 219, 334; Wyman on Public Service Corporations, vol. 1, see. 271; Pocantico Water Works Co. v. Bird, 130 N. Y. 249, 29 N. E. 246, 248; Minnesota Canal & P. Co. v. Koochiching Co., 97 Minn. 429, 7 Ann. Cas. 1182, 107 N. W. 405, 414, 5 L. R. A., N. S., 638, 649.)
*330The question has arisen as to whether the water in controversy is part of the public waters of the state. No direct evidence was offered on this point in the hearing before the board and no finding was made thereon. Appellant and its predecessors have assumed that this water is part of the public waters of the state and have dealt with it as such. In the record we find the following testimony by Mr. R. H. Johnson, leading counsel for appellant, concerning an injunction suit brought by one of appellant’s predecessors in 1899 'against Robert Wilson, from whom was acquired the land on which the hot water wells were sunk:
“Mr. Johnson: At the request of counsel for Intervenors and the Commission, I make the following statement as to the best of my recollection relating to the case of Boise Artesian Hot & Cold Water vs. Robt. B. Wilson, which, I believe, was instituted in the District Court of this County in about the year 1899: Previous to the institution of the suit, Mr. Wilson commenced sinking a well on his land immediately adjoining the land which had been purchased from Mr. Wilson for the development of the hot water wells now owned by the Natatorium Company. The owners of the hot water wells were very much concerned over this drilling by Mr. Wilson. He sunk his well as close as possible to the division line and as near the company’s wells as he could and remain on his own land. The Company filed notices of water right appropriation on the theory that their hot water was obtained from a subterranean stream and that the company being a prior appropriator and having devoted the water to a beneficial use could enjoin Mr. .Wilson in case he secured a flow of hot water which diminished the flow in the company’s wells. As I remember it, Mr. Wilson sunk his well to a greater depth than the wells of the company and secured no hot water to speak of. He then prepared to shoot his well, that is, discharge a quantity of explosive in the bottom of his well. The company, or the officers of the company were advised that this might jeopardize the flow of water in their.wells; *331they at once commenced the above suit to enjoin Mr. "Wilson from shooting his well. The District Court of Ada County issued the injunction, and the well was never shot. As I recall it, the ease did not proceed to final settlement.”
From the fact that appellant’s predecessors assumed this water to come from a subterranean stream and from the fact that they appropriated it as a part of the public waters, of the state and obtained an injunction against a threatened interference with their appropriation on the theory that their supply came from a subterranean stream, and from the continuity and quantity of the flowq strongly suggesting a subterranean stream, I think this court would be justified in assuming that such water comes from a subterranean stream. In the opinion of the waiter, however, this is immaterial, because, if private, the owners have dedicated the surplus water to a public use by selling and distributing it to Boise and its inhabitants, without contracts that in any way limited the right of the customer to a continuation of the service so long as he complied with the regulations of the seller.
If the men who were the first proprietors of the hot water and their successors were so fearful, as appellant now claims they were, that the sale of hot water might possibly fasten upon the surplus a public use, is it not strange that they did not expressly limit the time for wdfich such service would be furnished to each customer and reserve the right to withhold or withdraw such service? Yet there is no evidence that they ever did this, which would have been the most natural and likely thing for men to do when acting under the influence of such fear. Such precautions would have clearly evidenced an intention not to dedicate, made known to every user.
It has been suggested by appellant that it has never applied to the city of Boise for a franchise and that it has no written franchise, but this is entirely immaterial. It has occupied several miles of streets of Boise for 30 years or more and has exercised rights which it is entitled to exercise only by virtue of a franchise, and it cannot be heard *332to say now, in an attempt to defeat proper control in so far as its business is a public utility, that it is now and has been all these years operating without a franchise from the city of Boise. The question whether or not it has such franchise cannot be tried out in this action, but under the facts of the ease for all purposes herein it must be conclusively presumed to have such franchise with whatever burdens and responsibilities go with it.
“The assumption of a franchise and the exercise of rights which can only be exercised thereunder will constitute an estoppel to deny the existence of .such franchise for the purpose of defeating claims arising by reason of the existence of such franchise.” (26 C. J., p. 1029, see. .60.)
Aside from the constitutional provisions above set out, which, under the admitted facts, are decisive of this case, it ,has been held that:
“A private corporation which procures from a municipal corporation a franchise for supplying the latter and its inhabitants with water, and by virtue of which franchise it is permitted to and does use the streets and alleys of such municipal corporation in the carrying on of its business, becomes thereby affected with a public use and assumes a public duty.” (American Water Works Co. v. State, 46 Neb. 194, 50 Am. St. 610, 64 N. W. 711, 30 L. R. A. 447; 2 Morawetz on Private Corporations, sec. 1129; Seaton Mountain E. L. H. & P. Co. v. Idaho Springs I. Co., 49 Colo. 122, 111 Pac. 834, 33 L. R. A., N. S., 1178.)
“The household service which constitutes the characteristic type of modern employments which are public in character cannot be carried on without local franchises, as the use of the streets is almost always indispensable. Since this is true of surface railroads and other methods of urban transportation, of gas supply and electricity, of water and sewerage, the argument has often been made that the public character of these services is the result of the municipal franchises which they have received for the use of the public streets. But as has been seen earlier, this view of the matter mistakes consequence for cause; since, unless these *333services were public in character, these franchises could not be constitutionally granted.” (1 Wyman on Public Service Corporations, sec. 215.)
In a little book offered in evidence containing the regulations of the company owning this water in 1918 there is a brief historical sketch of the hot-water system. The extent to which this system at that time occupied the streets of Boise is indicated in the following statement taken from this book: “The pipe-lines now consist of nine miles of iron pipe, about one-half of which is Matheson joint pipe, ranging from four to twelve inches in diameter. These lines constitute our principal mains. The other half is standard galvanized pipe, and constitutes our small branch and side lines which serve small groups of customers. These lines are from three quarters of an inch to two inches in diameter, and are small because of the fact that a larger line would allow the water to cool and would encourage waste.”
The act providing conditions of appeal from the Public Utilities Commission to this court, Session Laws 1921, page 141, contains the following provisions:
“Sec. 3. No new or additional evidence may be introduced in the Supreme Court, but the appeal shall be heard on the record of the commission as certified by it. The review on appeal shall not be extended further than to determine whether the commission has regularly pursued its authority, including a determination of whether the order appealed from violates any right of the appellant under the constitution of the United States or of the State of Idaho. Upon the hearing the Supreme Court shall enter judgment, either affirming or setting aside the order of the commission. In case the order of the commission is set aside the commission upon its own motion or upon motion of any of the parties, may alter or amend the order appealed from to meet the objections of the court in the manner prescribed in Section 2501.”
“See. 8. The provisions of the Code of Civil Procedure relative to appeals from the district court, except in and *334so far as they are inconsistent herewith, shall apply to appeals from orders of the public utilities commission.”
C. S., sec. 7170, which is one of the provisions of the Code of Civil Procedure referred to in section 8, supra, is as follows:
“Upon an appeal from a judgment the court may review the verdict or decision and any intermediate order or decision, if excepted to, which involves the merits or necessarily affects the judgment, except a decision or order from which an appeal might have been taken: Provided, That whenever there is substantial evidence to support a verdict the same shall not be set aside.”
It is clear from the record that the use to which appellant and its predecessors have applied that portion of the hot water over and above what is required for the Natatorium is a public use as defined by section 1, article 15, of the constitution of this state, and that by the acts of appellant and its predecessors such surplus hot water has been dedicated to such portion of the public as has been and may reasonably be served therewith. The sale and distribution of such hot water is therefore subject to. regulation by the Public Utilities Commission of this state.
We do not regard the views herein expressed as in conflict with the position taken by this court in Stoehr v. Natatorium Co., supra, since that case turned on the stipulation of facts, of which the court said: “In the present ease the stipulation of facts clearly negatives any express or implied dedication by respondent of its hot-water service to the public, and justified the district court in Adding that respondent was not a public utility.”
In this case facts additional to those contained in the stipulation in the Stoehr case and contradictory of some of them were before the commission. Among the facts stipulated in that case were the following: “The said hot water was not developed and acquired for the purpose of sale to the general public, and neither the Natatorium Company nor any of its predecessors in interest have ever held it open to use or purchase by the general public but at all *335times since its original discovery it was, and now is, intended for nse primarily for the said Natatorium for sanitary and bathing purposes. The said surplus hot water has never been offered for sale to any person, and was only supplied to additional consumers after they had made application therefor and were ready and willing to pay such compensation therefor as was requested by the owners thereof, and such owners have on many occasions since said hot water was discovered, refused, for satisfactory reasons, to supply it to various persons who desire the same..... And the said owners have always taken the position that the said natural hot water was strictly a private and not a public use and they never at any time held out that such hot water was for sale to the public in general and never at any time did or suffered any act or thing to be done or performed with the intention of dedicating said hot water to a public use.” '
Some of the statements above quoted from the stipulation are somewhat evasive. For instance, while it may be literally true that “said hot water was not developed and acquired for the purpose of sale to the general public, and neither the Natatorium Company nor any of its predecessors in interest have ever held it open to use or purchase by the general public,” it is true as found by the commis-| sion and shown by the evidence that said water was claimed| in part “for sale for domestic uses and for bathing and heating purposes and for other purposes for which hot water may be used,” that appellant and its predecessors have sold and are selling it to as many of the general public as they are able to supply, amounting at this time to about 270 customers, and that while it may also be literally true that they have not “held it open to use or purchase by the general public,” it is also true that they have in fact held it open to use and purchase by just as many of the general public as they were able to supply.
As shown by the authorities cited above in order to constitute the use of the hot water a public use it is not necessary that the entire surplus output of the wells should be *336offered to the general public. The sale of this surplus to a portion of the general public is sufficient. If we understand the word “primarily” as applying to the first use to which the hot water was put it is true that it was “intended for use primarily for the said Natatorium,” but if we understand this word to have reference to the quantity of hot water now used and to the importance of the use to which the hot water is put it is not true that “since its original discovery it was, and now is, intended for use primarily for the said Natatorium,” and so the commission found on sufficient evidence. ¡
In my opinion there is substantial evidence to sustain the finding of the commission that the facts developed in the record “show the defendant to be a public utility in so far as the hot-water service has been furnished and distributed for heating and domestic use,” and the order of said commission appealed from should be affirmed.
Petitions for rehearing denied.