I concur in the order affirming the judgment. But I do not desire to be understood as concurring in the view that rights purely contractual, even though they relate to the sale, rental, or distribution of water, can be enforced through the medium of a writ of mandate. Mandate will issue only to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. Water appropriated for sale, rental, or distribution is a public use, and subject to the regulation and control of the state. (Const., art. XIV, sec. 1.) Hence, every person, company, or corporation engaged in the sale, rental, or distribution of water may be compelled to furnish water to all who require it, to the full extent of the supply of water under the control of such person, company, or corporation. This is a duty specially enjoined by law, and mandate will lie to enforce it. But the legal duty of the respondent in the case at bar is measured and limited by the quantity of water which it has the ability to supply. When the supply is exhausted by the requirements of those having a legal right to its use, the legal duty as to others ceases. Therefore it was incumbent upon petitioners to show in their petition, not only that respondent had sufficient water to supply their demand, but that it had such quantity over and above the amount of water actually being supplied to those entitled to demand and receive *Page 418 water. The contractual duties of respondent extend to the full amount of water which it agreed to furnish, but its legal duty, enforceable by mandate, extends only to the surplus water which remains subject to petitioner's use and demand after the needs of others actually receiving water, and entitled thereto by reason of prior demand and use, have been satisfied. In my opinion, therefore, the right asserted under the contract is a false quantity in determining petitioners' right to the particular remedy and relief here sought. The petition is framed on the theory that, because respondent contracted to furnish a certain definite quantity of water, mandate will lie to compel it to do so. This being the case, the majority opinion might be construed as holding that this would follow if the omitted statement of fact had been inserted. Waiving consideration of all other rights arising under this or similar contracts, I am of the opinion that it is only rights to water arising under the constitution and statutes which can be enforced by mandate, and hence deem it proper, if not necessary, that the ground of my concurrence should be separately stated.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 7, 1906.