Respondent seeks, in effect, to quiet title in himself to a certain water right. To establish such right he relies, first, upon a chain of title consisting of twelve different conveyances. An examination of each deed discloses the fact that there is not, and, so far as the record shows, there never was, a conveyance of the water right to respondent or to any of his predecessors by the appellant. While there are recitals in some of the deeds purporting to convey a certain water right, as before stated, in truth and in fact no such water right was so conveyed by the appellant company.
Respondent urges that if he is not entitled to have the right to the use of the water quieted in himself by mesne conveyances, he fully established a right to the use of the water by prescription and adverse user, and should therefore have the right quieted in himself.
The facts are, briefly, that appellant company appropriated all of the waters of Slaughter House Gulch and diverted the same through a system of underground pipes, thereby supplying the inhabitants of Wardner and Kellogg with water for domestic and other purposes. One of its mains ran along an alley near respondent's property. This main was tapped by a pipe through which respondent received water for domestic and other purposes. He received this *Page 648 service free. Appellant being a public utility and under the jurisdiction of the Public Utilities Commission, the commission fixed its rates upon a hearing before it and ordered that respondent no longer be furnished free service. Appellant gave notice to respondent of this order and billed him as it did other users for water supplied through its system. Respondent refused to pay for the service, and urges that by reason of the fact that he has received this service gratuitously for many years, he thereby acquired the right to the use of the water by adverse user. This contention is not tenable. A water right can neither be initiated nor acquired by adverse user from the distributing system of a public service corporation. (1 Cal. Jur. 585.)
Respondent claims no right in the system and admits that title and ownership thereto rest in appellant. While he claims a water right, under the facts he has nothing more than a right to service upon compliance, in common with all other users, with the rules and regulations promulgated by the Public Utilities Commission. Under the provisions of C. S., sec. 2427, discrimination in favor of one user, and as against other users, is prohibited.
I concur with the majority that the judgment should be modified.