with which the defendant's interests were guarded by the instructions given. The judgment and order denying a new trial are affirmed. Kerrigan, J., and Zook, J., pro tem., concurred. 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 May 17, 1918. [Civ. No. 1802. Third Appellate District.-March 21, 1918.] GRAVELLY FORD CANAL COMPANY (a Corporation), Respondent, v. POPE & TALBOT LAND COMPANY (a Corporation), Appellant. EMINENT DOMAIN PRIVATE USE CONDEMNATION PROHIBITED.-The power of eminent domain cannot be used by a private person to promote private enterprises no matter how necessary or advantageous it may be to their success or however beneficial to the public. ID. IRRIGATION ACT OF 1911-CONDEMNATION FOR PRIVATE USE NOT AUTHORIZED.—The act regarding irrigation and declaring the same to be a public use, approved May 1, 1911 (Stats. 1911, p. 1407), does not authorize condemnation for irrigation purposes by an individual for his own private use, but for the use of the public only, since the statute means just what would be meant had section 1238 of the Code of Civil Procedure been amended by adding "irrigation" to the many "public uses" therein enumerated, in behalf of which the right of eminent domain may be exercised. ID. PUBLIC USE.-Public use means use by the public, and to make a use public, a duty must devolve on the person or corporation holding property appropriated by right of eminent domain to furnish the public with the use intended, and the public must be entitled, as of right, to use or enjoy the property taken. APPEAL from a judgment of the Superior Court of Madera County. W. M. Conley, Judge. The facts are stated in the opinion of the court. J. W. Dorsey, and W. E. Cashman, for Appellant. CHIPMAN, P. J.-Action to condemn a right of way for a canal. A general demurrer to the complaint was overruled and defendant answered; a jury was waived, the cause was tried by the court, and plaintiff had judgment, from which defendant appeals on the judgment-roll alone. It is alleged in the complaint that plaintiff is a corporation organized under the laws of this state and was incorporated "for the purpose of distributing, supplying, and delivering water for irrigation purposes, and for domestic use, to the stockholders of said corporation, and to the owners of its capital stock, and to that end to construct canals for the appropriation, diversion and conveyance of water," etc.; that pursuant to said purposes, and on May 23, 1912, said corporation "posted a notice of appropriation of one thousand five hundred cubic feet of water of the San Joaquin River flowing per second by means of a ditch taking out of the north bank of the said San Joaquin River," etc., particularly de scribing the ditch to be one hundred feet wide at the bottom and 125 feet wide at the top and three and one-half feet in depth, over and across certain lands, and among others three sections of land owned by defendant; that for said purpose "it is necessary that the said plaintiff acquire a right of way two hundred feet wide along the line of said canal as above set forth"; that defendant's said land is "about midway between the termini of the said canal, and it is impossible to construct the same for the purposes for which it was intended without passing by, through, over, and upon the said lands; . . . that the purpose of the said canal is to irrigate seventeen thousand acres of land, more or less, situate under the said canal and to the west thereof, and in the townships above referred to." As showing the reasons and necessity for granting the relief prayed for, it is alleged "that the climate of the San Joaquin Valley in which the said land is situated is by nature arid, and the rainfall in said valley is extremely light and insufficient with which to raise and mature profitable crops without artificial irrigation; and said land is by nature. arid and will produce little or no crops without artificial irrigation, and without irrigation it is of little value, but the said land is extremely fertile and productive, and can be tilled, plowed, cultivated, and planted to alfalfa, trees, and vines, cereals, and other crops, and can then become inhab ited and become the dwelling place of a large number of people, and the value of the said land and the assessed value thereof would be greatly increased by the irrigation thereof, and the assessed valuation of the said land for the purposes of taxation would likewise be increased by the irrigation of the said land, and by reason of the irrigation thereof valuable improvements would be placed upon the said land, and if the said land can be properly irrigated and proper works constructed for the irrigation thereof, the value thereof and the assessed value thereof will be greatly increased, and further valuable improvements can and will be placed upon said lands and valuable crops of alfalfa, trees, vines, cereals, and other crops can be planted and grown thereon, and the irrigation of said land is a public use and a public necessity, and is the public use for which plaintiff seeks to acquire the right of way described herein and is the public use in behalf of which it is sought to construct, maintain, and operate the canal aforesaid. . . That the use for which the said right of way is sought to be acquired is a public use within the meaning of an act, entitled: 'An act regarding irrigation and declaring the same to be a public use,' approved May 1, 1911, (Stats. of 1911, p. 1407), and the said right of way is necessary to the said public use, and the said plaintiff is in charge of the public use for which the said property is sought to be acquired." The prayer is that said right of way be condemned "for the public use aforesaid, and acquired by the said plaintiff in accordance with the provisions of Title VII, Part III, of the Code of Civil Procedure." The court made the following findings of fact: 1. "That each and every, all and singular the allegations of plaintiff's complaint are and each thereof is true. 2. That all of the capital stock of the said plaintiff is owned by Miller & Lux Incorporated (a corporation), and all of the land situated under the flow of the said canal and intended to be irrigated therefrom is owned by the said Miller & Lux Incorporated, and the plaintiff was created to irrigate the lands of said Miller & Lux Incorporated, and none other. 3. That the water diverted by the said plaintiff is diverted from the San Joaquin River by means of a canal taking out at a point referred to in the complaint, and said plaintiff has never applied for or received from any official of the United States government any special permission or permit or authority to construct the said canal or to divert the water of the San Joaquin River into the same." As conclusions of law, the court found "that plaintiff is entitled to acquire and condemn the property described in the complaint," subject to certain conditions not necessary to be stated, and entered judgment accordingly. It is conceded that the condemnation sought is for the purpose of enabling Miller & Lux, a corporation, the owner of all the stock of plaintiff company, to irrigate its lands "and none other." The question is simply this: Does the statute confer the right of eminent domain upon a person who desires to condemn property for irrigation and to be devoted to his private use only? From the first case down to the last found in the reported decisions of the supreme court and appellate courts of this state it has uniformly been held that the power of eminent domain cannot be used by a private person to promote private enterprises, no matter how necessary or advantageous it may be to their successor or however beneficial to the public. In Gilmer v. Lime Point, 18 Cal. 229, 251, the court said: "The phrase employed in the constitution is: 'Nor shall private property be taken for public use without just compensation.' The words 'public use' here mean a use which concerns the whole community, as distinguished from a particular individual or a particular number of individuals. . . . It may be a use in which but a small portion of the public will be directly benefited, as a street in a town, or bridge or a railroad, necessarily local in its benefits and advantages, though it must be of such a character as the general public may, if they choose, avail themselves of it." "But,' said the supreme court in Nickey v. Stearns Ranchos Co., 126 Cal. 150, 152, [58 Pac. 459], "in this state private property may not be taken or damaged for private use at all. It may be taken only for public use after just compensation made or paid. (Const., art I, sec. 14.)" The court said in Amador Queen Mining Co. v. De Witt, 73 Cal. 482, 485, [15 Pac. 74]: "The plaintiff cannot have a right of way through defendant's mine condemned for its use in working its own mine. The mine of defendant is his private property, and it is clear that the plaintiff asks for the condemnation in order that it may appropriate a way through that property for its private use. This cannot be done." Cases to like effect might be multiplied. We do not understand respondent to deny that the foregoing is the rule in this state. San Joaquin & K. R. Canal & Irr. Co. v. Stevinson, 164 Cal. 221, [128 Pac. 924], is cited by respondent to the point that prior to the enactment of the statute of 1911, "one condemning for irrigation purposes was required to supply water to all who were capable of enjoying it." Respondent's contention is, as stated in its brief, "that it is in the power of the legislature to declare irrigation to be a 'public use,' whether the irrigation be by the public generally or by an individual for his own private use, and in answer to appellant's second contention respondent will contend that the statute of May 1, 1911 (Stats. 1911, p. 1407), (General Laws, p. 770), has made such a declaration and authorized condemnation for irrigation purposes, whether the public participate directly in the irrigation or not." Appellant attacks the judgment on several grounds: First, if the act confers the power claimed for it, it is unconstitutional; second, that the act does not authorize condemnation. for the use of an individual but only for the use of the public; third, that plaintiff did not receive any permit from the United States government before making the appropriation of the water which is to be carried through the canal along the right of way condemned by plaintiff in this case. Inasmuch as the judgment in this case as well as respondent's contention rests wholly upon the act of 1911, and, inasmuch as this is the first case arising under this statute which has been brought to the attention of a reviewing court, it is deemed proper to set forth the entire act. It is as follows: "An act regarding irrigation and declaring the same to be a public use. "[Approved May 1, 1911.] "The People of the State of California, represented in senate and assembly, do enact as follows: "Section 1. Irrigation in the State of California is hereby declared to be a public necessity and a public use, and the power of eminent domain may be exercised on behalf of such public use in accordance with the provisions of title VII, part III of the Code of Civil Procedure of the State of California. Provided that any person, firm or corporation, exercising the power of eminent domain and in control of |