I concur in the foregoing opinion of Mr.. Justice Helm as to most of the propositions therein contained. In ray judgment the district court had jurisdiction of this cause when it was before it, not upon the principal ground urged by the counsel for appellant, that there was no disagreement between the parties as 'to the price or compensation demanded by respondent for furnishing the water requested, but on the ground that the terms and demands exacted were unreasonable and illegal.
The record before us does not warrant the propcisition of counsel, that, of the two sums. of money demanded by the respondent, only the $1.50 per acre was for com-* pensation for transporting and furnishing the water, and that the $10 per acre was wholly for royalty, gift or bonus. Possibly a large portion of the latter sum may have been a demand of this character, and consequently without consideration in law or fact.
The alternative writ states, but not wholly in hcec verba, the stipulations upon this point of - the contracts required to be signed by the consumers of water. The statement is: “ Said contracts, after reciting that, in consideration of the stipulations therein contained and the payments as therein specified, the said company, party of the first part, agrees to sell to the consumer of water, the party of the second part, ‘ the right to receive and use water from the canal of the first party, ’ for irrigating the land described, for the sum of money named, and also *598' upon the further payment annually in advance, on or before the 1st day of May in each year from the date hereof, such a reasonable rental per annum, not less than $1,50 per acre, and not more than $f per acre, as may be established from year to year by the first party.’”
Appellant’s counsel, in discussing the question of jurisdiction, construe the phrase above quoted from the contract, “the right to receive and use water from the canal of the first party,” as an attempt on the part of the respondent company to sell a right which is, by the constitution, dedicated to the people and vested in the public, and which is, therefore, not a subject of sale. The language may admit of criticism, but it is only slightly variant from the language employed in the constitution respecting the duty of the general assembly to provide by law that the board of county commissioners, in their respective counties, shall have power “to establish reasonable maximum rates to be charged for the use of water ” furnished by individuals or corporations. And it is not as objectionable as the phraseology of the statutes, which includes such expressions as selling water, furnishing water for sale, purchasing water, and the like.
Without any greater liberalty of construction than that given the statutes, this contract might be construed to mean, by “the payments as therein specified” for “the right to receive and use water from the canal of the first party,” the consideration charged by the respondent company for conveying water through its canal'and furnishing it -for the use of consumers. Now the appellant was unwilling to make all the payments therein specified. He tendered a portion thereof and refused to pay the balance. Did not this action on his part fairly give rise to a disagreement or dispute between the parties as to the price to be charged for waters from the ditch? It is my opinion that the nature of the disagreement came clearly within the purview of both the constitution and the statute. But for the defect, therefore, in' the statute *599(which deprived the appellant of any relief under it), it would have been obligatory upon him, before applying to the district court for relief against the unjust charges and terms imposed by the ditch company, to have made application to the county commissioners of Arapahoe ■county to establish the maximum rate which'the respondent might charge. Therefore he might, or might not, have had a cause of action against the company, depending upon the course subsequently pursued by it. There being no gross wrong without a remedy, however, and. the statute then in force affording the appellant no right to apply to said county commissioners to fix a rate, he was justified in applying to the court for relief in the first instance. Respecting the measure of relief which might have been granted, the writ being now functus ■officio as to its principal object, I express no opinion.
The respondent, however, could not legally require payment of the $10. per acre, or other sum, for a series of years in advance, whether it be regarded as compensation or otherwise. Any sum charged for royalty or as a bonus would be unconstitutional.
Except in so far as these views may not harmonize with the foregoing opinion, I concur therein.
Beversed.
Mr. Justice Elbert not sitting.