If the petitioners had shown that the water company had originally, by its declarations to proposed consumers, or by acts evincing to them an intention to that effect, held out that it proposed to use its water supply, so far as was necessary, for irrigation and other uses upon a definite area or district of farming land, embracing the lands of such consumers, including the petitioners, and that in pursuance of this purpose it had constructed a system of canals extending to said lands and no further, and had obtained consumers in that district on the faith of such purpose, and thereafter supplied them with water through said canals, I think it is clear, both from the Civil Code (sec. 552), from our decisions on the subject, and from considerations of sound public policy and justice, that such consumers would have a right to insist on the continuance of the supply to their lands, that such right would be paramount to that of consumers in any newly formed district to which the water company might afterward undertake to supply water, and that such new users would be *236entitled to receive water only from the surplus of the company’s water after the users in the first mentioned district were supplied to the extent of their needs, not exceeding the amount per acre originally stipulated.
But as I understand the case, the petitioners did not attempt to show such conditions. Their theory appears to he that the water company did construct its canals to the region in which their lands are situated and by means thereof did supply water to their lands, and that inasmuch as this canal system was thus maintained and this water so supplied for a number of years without taking on new consumers, except for lands lying “under said canals,” as the phrase goes, and without extending its canals to distinctly new territory, the water of the company must now be deemed to have been dedicated exclusively to the use of these first consumers and to lands lying “under said canals,” so far as may be necessary for beneficial uses on said lands, and that consumers in other territories can have no right except to the surplus.
These facts do not establish the exclusive dedication so claimed. They do not show the intent to confine the service of water to the first users alone, and they are entirely consistent with the existence of the intent on the part of the company to continue the extending of their system and the service of a part of their original supply to other users in other territory.
The evidence shows that the rights of the original users of the water included among the petitioners, for the most part at least, were obtained under contracts with the Sutter Butte Canal Company to serve water to particular tracts of land belonging to particular consumers for- the term of the corporate existence of said company and at specified rates per acre for each year, and that these agreements contained a clause whereby the canal company reserved the right to “contract for the delivery of a thousand cubic feet of water per second,” and provided that when its water supply became less than one thousand cubic feet per second, each user should be entitled only to a proportional share thereof. They also declared that the water right thereby created should be appurtenant to the land described. By these contracts the company agreed to deliver water at the rate of a constant flow of one second-foot for every 160 acres of *237land. The land owner was to pay a lump sum of $13.50 per acre and a yearly rate of two dollars per acre. By notice on or before January 1st of any year the land owner could have at three dollars per acre two second-feet more for each 160 acres, for that year only. Contracts in this form were made covering about forty thousand acres. Other contracts were made covering from twelve thousand to fifteen thousand acres, which were similar in form, except that the water was to be used only for rice crops, the quantity was not limited, the land owner agreed positively to take it for a short term of two, three, or four years, and thereafter could take it or not at his option. No price was stated, but the evidence is that seven dollars per acre was charged for water on these contracts. Water was also furnished to other lands along the canals for a year, on application to the company, at rates fixed by the Railroad Commission. The proper irrigation of rice, it appears, required about three times as much water as is necessary for ordinary crops, the quantity varying with the composition and texture of the soil. There was evidence before the commission showing that the area of land irrigated from this, system had increased from time to time, until in 1919 the area irrigated for rice was twenty-two thousand acres and that for other crops was twenty-eight thousand acres. The water required for the rice land would be the equivalent of that required for sixty-six thousand" acres in ordinary crops. The acreage irrigated for that year would require enough water, therefore, to irrigate twenty-eight thousand plus sixty-six thousand acres, or ninety-four thousand acres, at one second-foot per quarter-section the minimum rate fixed by the contract, or a constant flow of 587 second-feet.
The reservation by the aforesaid contracts, giving the company the right to make like contracts for supplying at least one thousand second-feet of water and to compel the land owners to prorate the water when less than that quantity was available, shows that the original proposal of the company was that the company would devote a water supply amounting to one thousand second-feet, constant flow, to all land owners who applied for water for irrigation of their land, under such contracts, until the water so contracted for amounted to that quantity, that the water used should not exceed the rate of three second-foot for each quarter-*238section of 160 acres, and that the particular land covered by this limited number of contracts should constitute the area, district, or territory to which this particular one thousand second-feet of water should be dedicated. This was a dedication to a public use. (Traber v. Railroad Com., 183 Cal. 304, [191 Pac. 366, 370].) The contracts did not prohibit the company from extending its canals into new territory and selling a part of the one thousand second-feet for use therein, or from furnishing at the rate of more than three second-feet to each quarter-section of land. The company could therefore dispose of the entire proposed supply of one thousand second-feet at such places and in such quantities as it pleased, without departing from the terms of the dedication, and such disposition would not constitute a new dedication of which any of such contract users could lawfully complain.
I am of the opinion that if the company had thus disposed of this entire supply, it would have amounted to a dedication of that quantity of water to public use for irrigation exclusively upon the lands described in the several contracts, and that neither the company nor the Railroad Commission could enlarge the dedication or expand the territory entitled thereto, so as to give to other lands an equal right to receive water out of that one thousand second-feet in common with the lands described in such contracts. The land so described would be entitled to preference in such use and other lands could rightfully receive water only from the surplus remaining after the rightful users had taken the quantity they had respectively contracted for so far as it was required for beneficial uses on their lands. (Civ. Code, sec. 552; Merrill v. Southside Irr. Co., 112 Cal. 435, [44 Pac. 720]; Palmer v. Railroad Com., 167 Cal. 174, [138 Pac. 997]; Del Mar etc. Co. v. Eshleman, 167 Cal. 681, [140 Pac. 591, 948]; South Pasadena, v. Pasadena etc. Co., 152 Cal. 588, [93 Pac. 490]; Thayer v. California Dev. Co., 164 Cal. 135, [128 Pac. 21] ; Riverside Land Co. v. Jarvis, 174 Cal. 321, 322, 324, [163 Pac. 54]; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 161, 162, [41 L. Ed. 369, 17 Sup. Ct. Rep. 56, see, also, Rose’s U. S. Notes].)
But here it does not appear that the company had yet dedicated the whole of this one thousand second-feet at the time it proposed to supply the additional fourteen thousand *239four hundred acres in 1920, to which the petitioners object. As above stated, the total area supplied up to and including the year 1919 required only a constant flow of 587 second-feet. The fourteen thousand four hundred acres to be taken on in 1920, even if it were all irrigated for rice and required three second-feet for each quarter-section, would consume only 270 second-feet in addition, making in all 857 second-feet. This comes well within the proposal to supply one thousand second-feet, and the petitioners do not appear to have any legal reason for their claim to preference in the use of the small supply available. Their contracts require them to prorate with the other beneficiaries in that public use, in such a case. It does not appear from the evidence, so far as I am advised from the briefs, that those of the petitioners who have received water only under the yearly applications require more water than could be supplied out of the margin of 133 second-feet remaining of the original one thousand second-feet to be devoted to these lands. They therefore cannot claim any greater rights than the original contract users.
I wish to say further that the mere fact that the notice of appropriation under which the water company originally diverted the water from the Feather River named the counties of Sutter and Butte as the places of use has, in my opinion, no significance whatever with respect to the question of the dedication of the water to any particular use or place. The facts in that respect are not essentially different from those considered in Palmer v. Railroad Com., 167 Cal. 174, [138 Pac. 997]; wherein it was held that the dedication of the water taken under appropriation notices designating the place of use by similar indefinite statements would be manifested only by the actual taking of the water and supplying it to particular tracts or districts of land, and that the appropriation notices did not constitute such dedication. I mention this because from the proceedings before the Railroad Commission it appears to have been assumed that these clauses in the appropriation notices constituted a dedication of the water to public use upon all the land embraced in the two counties named.
For these reasons I concur in the conclusion that the Railroad Commission acted within its powers in making the order here sought to be reviewed.