(dissenting). The decision of the case in the court below was based upon the construction placed by the Supreme Court of California upon the state Constitution of 1879 and *19the statutes of the state passed pursuant thereto as expressed in the leading case of Fresno Canal & Irrigation Co. v. Park, 129 Cal. 437, 62 Pac. 87, and as recognized by this court in San Diego Flume Co. v. Souther, 90 Fed. 164, 32 C. C. A. 548, and Id., 104 Fed. 706, 44 C. C. A. 143. I am unable to agree that the court below erred therein or in reaching the conclusion that the decision in Fresno Canal & Irrigation Co. v. Park has not been overruled or modified by the subsequent decisions in Leavitt v. Lassen Irrigation Co., 157 Cal. 82, 106 Pac. 404, 29 L. R. A. (N. S.) 213, or Lassen Irrigation Co. v. Long, 157 Cal. 94, 106 Pac. 409. It is not held, in either of those cases, that water rights may not be sold by public service corporations, or that contracts may not be voluntarily made by and between such corporations and the consumers of water for the supply of water to such consumers in the districts for which water has been appropriated. In the first of those cases, all that was held was that a water company, having water appropriated under the Constitution of 1879 for sale or rental, is without power to confer any preference right on one consumer over another to the use of any part of its water,'and incidentally the court sustained the validity of a contract between the water company and a consumer, by holding that where the water company furnished to a consumer water under a rate fixed by it, and the consumer refuses to pay anything and claims the right to use the water without charge, his act amounts to a repudiation of the contract and ends his rights thereunder. The court said:
“Tt does not follow that a water company may not make specific contracts with individual consumers which are within the purview of the Constitution and within valid legislative enactments regulating the public use. This is precisely as decided by Fresno Canal Co. v. Park, 129 Cal. 437 [62 Pac. 87].”
■ In Lassen Irrigation Co. v. Long, it was held that the continued refusal of one to whom water was being furnished under a contract to pay therefor is a breach of the contract, justifying the water company in repudiating the contract and suing thereafter, in the absence of a legally established rate, for the reasonable value of the service rendered.
Recognizing the binding force of the decisions of the Supreme Court of California, the court below held, in substance, that the appellant, a mutual water company, necessarily parted with its right to select its own stockholders, since it was of the essence of the scheme that any qualified entrymen within the district should he entitled to receive water upon payment of the established rates, and that there is nothing illegal in a contract between a water company and a consumer which provides for an initial charge for the perpetual right to water and a further charge based upon the quantity of water furnished. This is in harmony with what was said in Fresno Irrigation Co. v. Park:
“Something is said by appellants about the money paid by their predecessors at the date of the contract, which is called by them a ‘bonus’; but it is difficult to see how that matter can he brought into view, as the only moneys herein involved are the early rentals; and, even if it were invoked here, the payments of part of the rental in advance would certainly not-vitiate the contract.”