that the only expression in our statutes upon the subject of priority of rights among appropriators from a common source for agricultural purposes is found in paragraph 3215 of the Revised Statutes, which reads: "That during years when a scarcity of water shall exist, owners of fields shall have precedence of the water for irrigation according to the dates of their respective titles or their occupation of the lands either by themselves or their grantors, the oldest titles shall have precedence always." And, while this section applies primarily to public acequias, it is significant, taken in connection with paragraph 3201, and negatives the idea that priority of appropriation is a mere personal right, which may be enjoyed otherwise than by its application upon particular lands. We hold further, therefore, that the defendant company, by adopting and continuing the practice of supplying water to others than its water-right holders owning or possessing arable and irrigable land, not being itself an appropriator of the water carried, or the owner thereof, and dealing, as it was, with public property, became a public agency to the extent that plaintiff at the time he made his application for water, although not a water-right holder of the company, was entitled, upon the payment of the charge for similar service made to other non-water-right holders, whether holders of orders from water-right holders or not, to have delivered upon his lands water sufficient for the irrigation thereof, in preference to other non-water-right holders whose appropriations were subsequent in time, and that he is entitled to this service upon the same terms and conditions, so long as the defendant company continues to supply water to consumers under its canal who are not its water-right holders, whether upon the order of the latter or not, and thus continues to assume the status of a public agency in the diversion and carriage of water. We do not hold that the water-right holders in the Salt River canal are upon a parity of right with appellant and other non-water-right holders similarly situated to the service of the canal and to the water it diverts and carries. We assert that the canal company owes a first duty to supply the needs and requirements of the water-right holders. It is the surplus water remaining in the canal after this is done which is lawfully available to the latter class, and which must be disposed of by the company in the manner herein decided. Under the circumstances shown by the record, we hold that the appellant was wrongfully denied water for the irrigation of his lands at the time he made his application, in May, 1899; it being shown that the appellee company during that season was engaged in supplying other consumers within the flow of its canal who were non-water-right holders, and thus, confessedly, was diverting and carrying water in its canal in excess of that needed and required by its water-right holders for the irrigation of lands to which their water rights were attached, and it being further shown that appellant had the superior right to the use of such surplus water over other non-water-right holders thus supplied, by virtue of his ownership and possession of lands having an older right of appropriation. We

further hold that, so long as appellant continues to be the owner or possessor of said lands, upon paying the usual and reasonable charge therefor, he is entitled to the same service, whenever and so long as the appellee company undertakes to and does divert and carry in its canal water from Salt River in excess of that needed and required by its water-right holders for the irrigation of lands owned or possessed by such water-right holders, and to which such water rights are attached. The judgment of the trial court is reversed, and a judgment and decree will be entered in consonance with this opinion. DOAN, J., concurs.

DAVIS, J. I do not concur in the opinion of the court in this case.

ANONYMOUS.

KING'S BENCH, ENGLAND, 1690.

[2 T. R. 3.1]

PER CURIAM. An action lies against a common carrier for refusing to carry money, if he do not assign a particular reason for it.

1 But see Citizen's Bank v. Nantucket St. Co., 2 Story, 16; Fay v. Stearnes New World, 1 Cal. 348; Mechanics Nt. Bk. v. Gordon, 5 La. Ann. 604; Pender v. Robbins, 6 Jones, 207. If, however, a regular profession has been made to carry valuables, it is common carriage. Hellman v. Holladay, 1 Woolw. 365; Kirkland v. Montgomery, 1 Swan, 452.

JOHNSON v. MIDLAND RAILWAY COMPANY.

COURT OF EXCHEQUER, ENGLAND, 1849.

[4 Exch. 367.1]

PARKE, B. They were not bound to carry the coal unless they had convenience for that purpose: Jackson v. Rogers, 2 Show. 327; and the evidence was, that they could not carry coal without giving up the passenger traffic. In order to entitle everybody to call upon them to carry coal from Melton Mowbray to Oakham, they must have publicly professed to do so. The question is irrespective of the Act of Parliament, which only enables them to be carriers, leaving them at liberty to exercise their common law right of carrying any particular description of goods only, from and to particular places."

1 In this interjection by Parke, B., at the argument all the points made in the final decision of the case were foreshadowed. - ED.

2 Accord: Leonard v. American Express Co., 26 Upp. Can. Q. B. 533.

TUNNEL & SHORT v. PETTIJOHN.

SUPERIOR COURT OF DELAWARE, 1836.

[2 Harv. 48.]

CAPIAS CASE. The proof established that defendant was in the habit of hauling for hire, goods landed at Milton, belonging to merchants in Georgetown; but one of these merchants testified, that the defendant had refused to carry molasses for him on account of its bulk and weight, and that he had never known him to carry molasses. The hogshead in question was brought from Philadelphia, for Tunnel and Short, by Captain Parker, and delivered on the wharf at Milton; when, defendant's cart being there, it was placed by Parker's hands and defendant's servant in his cart. While placing it, the hogshead rolled and fell from the cart, and the contents were spilled upon the ground and lost.

The Court said, to enable the plaintiff to recover, he must prove either a special contract and undertaking by the defendant to carry this hogshead of molasses, or a general usage; that is, that the defendant was a common carrier of goods, including goods of this description. A general usage to carry goods other than molasses is proved in this case; but so far as there is proof of usage, it is against the idea of the defendant's general undertaking to carry molasses. And there seems to be good reason for distinguishing between this and other kinds of goods, on account of its bulk and weight, and it also appears that the defendant's cart is too small for such freight.

The other is a more difficult question, as to when the defendant's liability commenced, supposing him to be liable. Was the delivery to him complete, by showing him the hogshead on the wharf, or was the captain of the vessel bound to place it in the cart. But the point is unnecessary, as we are of opinion that the defendant is not liable, under the proof in the case, on the other ground.

Nonsuit ordered.

KANSAS PACIFIC RAILWAY COMPANY v. NICHOLS, KENNEDY & CO.

SUPREME COURT OF KANSAS, 1872.

[9 Kans. 235.1]

ACTION brought by Nichols, Kennedy & Co. to recover damages for cattle lost by the Railway Company alleging it to be a common carrier of cattle.

VALENTINE J. At common law no person was a common carrier of any article unless he chose to be, and unless he held himself out as such; and he was a common carrier of just such articles as he chose to be, and no others. If he held himself out as a common carrier of silks and laces, the common law would not compel him to be a common carrier of agricultural implements such as plows, harrows, etc.; if he held himself out as a common carrier of confectionery and spices, the common law would not compel him to be a common carrier of bacon, lard, and molasses. Funnel v. Pettijohn, 2 Harrington (Del.), 48. And it seems to us clear beyond all doubt, that if any person had in England prior to the year 1607 held himself out as a common carrier of cattle and live stock by land, the common law would have made him such. If so, where is the valid distinction that is attempted to be made between the carrying of live stock and the carrying of any other kind of personal property? The common law never declared that certain kinds of property only could be carried by common carriers, but it permitted all kinds of personal property to be so carried. At common law any person could be a common carrier of all kinds, or any kind, and of just such kinds of personal property as he chose, no more, nor less. Of course, it is well known that at the time when our common law had its origin, that is, prior to the year 1607, railroads had no existence. But when they came into existence it must be admitted that they would be governed by the same rules so far as applicable which govern other carriers of property. Therefore it must be admitted that railroads might be created for the purpose of carrying one kind of property only, or for carrying many kinds, or for carrying all kinds of property which can be carried by railroads, including cattle, live stock, etc. In this state it must be presumed that they were created for the purpose of carrying all kinds of personal property. It can hardly be supposed that they were created simply for the purpose of being carriers of such articles only as were carried by common carriers under the common law prior to the year 1607; for if such were the case they would be carriers of but very few of the innumerable articles that are

1 Only an extract is printed. - ED.