PETITION for a rehearing to avoid extension of water service; complaint to compel extension of service dismissed.

Appearances: A. H. Upton, for complainants; Edgar T. Zook, for defendants.

By the Commission: Defendants' petition for a hearing in the above entitled case upon the ground that the testimony does not warrant a finding that defendants or their predecessors in interest have dedicated all their waters to use to all the public residing in the vicinity of the lands of defendants at Stinson Beach, Marin county.

A public hearing upon the petition was held by examiner Westover at San Francisco. The parties submitted further testimony and argument after stipulation that such further testimony and argument could be considered as addressed to the petition for rehearing, and also as in the determination of the rehearing if the Commission should conclude that defendants' petition for rehearing should be granted. The matter is, therefore, ready for final decision.

Defendants are owners of Stinson ranch and the unsold portions of subdivisions 1, 2 and 3 thereof, and of a parcel of ground known as Willow Camp which adjoins the Charles Robinson property, owned by complainant Mary Annie Upton. The stream which supplies water for defendants' properties flows through Mrs. Upton's Charles Robinson tract.

Prior to 1871, when all of the above properties were acquired by Nathan H. Stinson, his grantor had conveyed an adjoining parcel of ground containing 3 acres, herein referred to as the Jordan property. At the time Mr. Stinson acquired the above property, water was being diverted from a stream on the ranch for use for a house and barn on the Jordan property. Water was used at the barn for filling a barrel used for watering horses on the property, but not used as a public watering trough. The parties hereto agree that for the purposes of this record the use of water upon the Jordan property is presumed to have been established by a prior grant. They also agree that the use of such water was not paid for to Stinson, nor to his estate after his death in 1910. However, in 1916 or 1917 defendants authorized the

tenant upon the Jordan property to take water from their main in Buena Vista street in Subdivision 2, whereupon he laid a pipe so connecting the house and barn, and abandoned the original service from the stream. Since that time, water service for the house and barn on the Jordan property has been paid for at the regular rates. The Jordan barn and a small strip of the Jordan property are admittedly included in the Charles Robinson tract. Defendants do not serve water beyond the lines of their subdivisions and Willow Camp referred to in the original decision, except for the service to the house and barn on the Jordan property. The only service by defendants within the lines of the Charles Robinson tract is the service at the Jordan barn.

The general policy of defendants and their predecessor, Nathan H. Stinson, has been to restrict water service to their own lands or purchasers of such lands, and to keep the rates low, as an aid in the sale of lands. Their chief interest has been in the land business rather than the water business. Quitclaim deeds have been executed and exchanged between the owners of the Robinson tract and the owners of the Stinson ranch and subdivisions for the purpose of quieting and strengthening their respective titles, but these deeds contain no reference to water or water service.

Upon the above facts, the defendants admit that they operate a public utility and have dedicated water to public use upon property sold from their subdivision and to the house and barn on the Jordan property, but argue that the dedication is limited to those specific areas.

Upon a careful consideration of all the facts now before us and of the law applicable thereto, as declared by the supreme court, we conclude that the position of defendants is correct, and that the order complained of should be set aside.

P.U.R.1921C.

The fact that an owner of a reservoir permitted two individuals to take water therefrom through a ditch maintained by themselves is not sufficient to show a dedication of the property to public use, and the Commission has no authority to direct the owner to continue to supply water.

[March 21, 1921.]

PETITION for a rehearing after order requiring a party to continue to supply water; order vacated and complaint dismissed. Appearances: Carr and Kennedy, for complainants; W. D. Tillotson, for defendant.

By the Commission: Defendant seasonably petitioned for a rehearing after decision, principally upon the ground that the Commission exceeded its jurisdiction in entering the original order herein, in that defendant is not engaged in conducting a public utility for service of the public.

As will be seen from the original opinion, defendant's reservoir supplies water for complainants only, and they lead the water from it in a small ditch maintained by them.

It is apparent that complainants relied upon the continued use of the water to develop their lands, orchards, and vineyards and that these improvements were måde with the knowledge of defendant. Whether or not any estoppel resulted, we conclude is a question to be determined only by the courts. The evidence is not sufficient, in our judgment, to show a dedication of the property to public use. The order must, therefore, be set aside.

As appears from the answer, defendant does not object to the use of the water so long as such use is not made a permanent burden upon the land, which might interfere with its sale or fuller development. It is probable that the parties can reach a satisfactory agreement for continued service under private contract.

Order.

It appearing from the petition for rehearing that the Commission exceeded its jurisdiction in entering the original order herein, and that a public hearing upon the petition for rehearing is not necessary:

It is hereby ordered, that the original order herein contained in Decision No. 6765 of October 22, 1919, be and it is hereby set aside and vacated, and that the complaint be dismissed.

1. A water system constructed for real estate promotion and supplying water to consumers who are not stockholders, but who have purchased land from the party furnishing water without reference to water service, is a public utility.

Rates

Water

Service connections and meters.

2. Water consumers should not be required to pay for service connections and meters under the California statutes.

3. A water utility largely overbuilt embracing a large area of sparsely settled territory, should not be allowed to require consumers to pay a rate high enough to produce the usual adequate return.

[March 21, 1921.]

APPLICATION to increase water rates; increased rates author

ized.

Appearances: E. V. Rosenkranz for applicant.

Loveland, Commissioner: Emil Firth, applicant herein, is engaged in the business of selling and distributing water for domestic purposes in Subdivision Tracts Nos. 2195 and 809, known as Arlington Square, Los Angeles county. In this proceeding, applicant asks for an order authorizing an increase in water rates, alleging in effect that his present charges for service are inadequate and do not produce a revenue sufficient to meet operating expenses.

A public hearing was held in this matter at Los Angeles, of which applicant's consumers were duly notified and given an opportunity to appear and be heard.

From the testimony, it appears that in 1910 Mr. Firth acquired the water system in question, together with a large tract of land. With the exception of a certain amount of water which has been purchased from the city of Los Angeles during times of emergency, the entire supply is obtained by pumping from a well On the above mentioned tract of land. The land has been subdivided and the water system developed as a part of a real estate project. Each consumer coming upon the system has been required to pay the entire cost of the connection for his service from the distribution main, including the meter.

located

[1] The utility serves eighty-five domestic consumers, there being no service which might be classed as commercial or indus

trial.

charges

written

arious rates have been charged, it being claimed that the were designed to meet operating expenses only, and taking this fact as a basis, Mr. Firth contended at the hearing that the system had not been operating as a public utility. However, it appears that no stock in this water system has been issued, and that the consumers are not stockholders therein; also that no agreements have been made with the purchasers of land. with relation to the service of water, and applicant has held himselfin readiness at all times to serve all consumers within the area supplied who desired service. Thus, it is obvious that within the meaning of the Public Utilities Act the conditions which actually obtain constitute this system a public utility, and that it is subject to the jurisdiction of the Railroad Commission.

[2]

sumers

With relation to applicant's practice of requiring that conpay for service connections and meters, attention is di

rected to the fact that this practice is contrary to this Commis

sion's

orders. In its Decision No. 2879, in Case 683, dated

November 5, 1915, Re Practice of Water, Gas, Electric & Telephone Utilities requiring deposits before rendering service (8 Cal.-R. C. 372), this Commission held that each water utility in

this state".

shall at its own expense install a service con

nection of normal size to the property line or curb line of propcrty abutting upon said public street

Therefore, the