I dissent from the order deny a rehearing of this cause. The opinion of the court is based upon the ground that the canal company cannot arbitrarily make assessments for the cost of maintaining and operating the works, and enforce payment by shutting off the supply of delinquents. Concede this proposition, and it does not follow that this judgment should be reversed or modified. The judgment of the superior court is not inconsistent with this view. The defendant threatened to shut off the water from plaintiffs if they failed to pay certain assessments. He was temporarily restrained from carrying out this threat, and the question was litigated as to the real amount due from the plaintiffs as their share of the expenses incurred in maintaining and operating the canal. It was found that $135 less was due, in the aggregate, than had been charged. Upon this fact being found, the superior court enjoined the defendant from shutting off the water for failure to pay the assessment *Page 182 bills as presented; but, provided that the defendant might present corected bills for the sums actually due, and if such bills were not paid, he could move to modify the judgment. In other words, the court merely reserved the right to relieve the defendant from the injunction, if it should be made to appear that the plaintiffs, or any of them, refused to pay assessments not arbitrarily made by the canal-owner, but judiciously ascertain by the court itself. It decided that it would not, by injunction, compel the canal-owner to go on performing its contract when the water-takers were refusing to perform on their part; that it would not afford equitable relief to parties who deliberately refused to do equity. The propriety of this decision appear to me to be unquestionable, but it is this part of the judgment which is reversed, and the result is, that the defendant must go on furnishing zanjeros, meters, gates, etc., for measuring out the water, and keeping up the canal at large expense, with no means of enforcing payment from the water-takers of their share of the expense, except separate actions in the courts against the respective delinquents. In effect, a specific performance is decreed in favor of parties who refuse to perform, and the party enjoined is remitted to another action, or series of actions, to enforce his right under the contract. This is not equity. The judgment of the superior court was equity.