..C£. fcen&eL.. LAW BOO KS 257 So. Spring St., Room 210 MUtual 4473 ■iiS THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW 5 E tW h n MINING AND WATER CASES ANNOTATED A COLLECTION OF LEADING AMERICAN, CANADIAN AND ENGLISH CASES ON THE TOPICS OF IRRIGATION, DRAINAGE, RECLAMATION, MINING, OIL, GAS AND RELATED SUBJECTS, WITH ANNOTATIONS, INDEXES AND FORMS By JAMES M. KERR OF THE CALIFORNIA BAR EDITOR OF KERR'S CYCLOPEDIC CALIFORNIA CODES AND THE PUBLISHER'S EDITORIAL STAFF VOLUME I CHICAGO CALLAGHAN AND COMPANY 1912 Copyright, 1912, by Callaghan and Company PREFACE. The Mining and Water Cases Annotated are, as their name implies, a series of selected annotated cases upon the topics of Irrigation, Reclamation, Drainage, Mines, Oil, Gas and re- lated subjects. The selection of cases for the series will be with a two fold purpose: First to present all the current and important decis- ions upon the topics within the scope of the series; and second, to afford the widest possible range of annotations. Cases upon points which have already been annotated will not be printed when to afford space for them would exclude annotations, it being the desire of the publishers to make the annotations the prominent feature of the series. Canadian, English and other foreign cases will be included, especial attention being given to the law of Canada. The annotations will be carefully and conscientiously done by competent editors under a definitely formulated plan whereby the series, as it enlarges, will become a working treatise on the law of Waters, Mines, Oil and Gas. Whether the notes are monographic or closely confined in scope the same care will be exercised in their compilation and arrangement, they will be carefully analyzed, and will be the result of a thorough examination of the authorities. Practical forms will be included from time to time. For example, in this volume are presented forms for the organization of a drainage district under the laws of Illinois upon which many of the modern drainage statutes are based. Each volume will contain carefully compiled indexes of cases, notes and forms. In conclusion the publishers wish to express their apprecia- tion of the valuable services rendered upon this volume by Mr. Herbert C. Lust of the Chicago Bar, by whom a large part of the material was collected and to whose efforts are in a great measure due its present form. CALLAGHAN AND COMPANY. Chicago, January, 1912. TABLE OF CASES REPORTED A. Acme Oil Company, Perry v. (44 Ind. App. 207, 88 N. E. 859) 99 Alexander, Mansfield Gas Co. v. (— Ark. — , 133 S. W. 837) 286 Angiola Water Co., Lower Tulle River Ditch Co. v. (149 Cal. 496, 86 Pac. 1081) 280 Appanoose County, Board of Supervisors of, Chicago, B. & Q. R. Co. v. (170 Fed. 665) 459 Atkinson, J. E. Crowe Coal & Mining Co. v. ( — Kan. —,116 Pac. 490) 446 Attorney General v. Dominion Coal Co., Ltd. (44 N. S. 423) 671 Avery v. Johnson (59 Wash. 332, 109 Pac. 1028) 531 B. Bannan v. Graeff ( 186 Pa. St. 648, 40 Atl. 805) 548 Barton v. Laclede Oil & Mining Co. (— Okla. — , 112 Pac. 965) 259 Beck v. Bono (59 Wash. 479, 110 Pac. 13) 222 Bellevue Gas & Oil Co. v. Pennell (76 Kan. 785, 92 Pac. 1101) 396 Board of Supervisors of Appanoose County, Chicago, B. & Q. R. Co. v. (170 Fed. 665) 459 Board of Supervisors of Wright County, Ross v. (128 Iowa 427, 104 N. W. 506) 358 Bona, Beck v. (59 Wash. 479, 110 Pac. 13) 222 Burch, Risch v. (— Ind. — , 95 N. E. 123) 325 Butte City Smoke-House Lode Cases (6 Mont. 397, 12 Pac. 858) 520 C. Caldwell, Shaw v. (— Cal. — , 115 Pac. 941 ) 558 Carnes v. Dalton ( — Or. — , 110 Pac. 170) 207 Chapman, People ex rel., v. Sacramento Drainage District (155 Cal. 373, 103 Pac. 207 ) 107 Charles West, Attorney General of the State of Oklahoma, Appellant, v. Kansas Natural Gas Co. (— U. S. — , 31 Sup. Ct. 564) 184 Charlton v. Kelly (2 Alaska 532) 293 Christy v. Union Oil & Gas Co. ( — Okla. — , 114 Pac. 740) 254 Chicago, B. & Q. R. Co. v. Board of Supervisors of Appanoose County (170 Fed. 665) 459 Chicago, Rock Island & Pacific Railway Co. v. Davis (26 Okla. 434, 109 Pac. 214) 566 Condor Water & Power Co. v. Enterprise Mining Co. ( — Or. — , 113 Pac. 858) . 412 Cranston, Wheelden v. ( 12 B. C. 489 ) 659 Crowe Coal & Mining Co., J. E., v. Atkinson ( — Kan. — , 116 Pac. 490) 446 D. Dalton, Carnes v. ( — Or. — , 110 Pac. 170) 207 Davis, Chicago Rock Island & Pacific Railway Co. v. (26 Okla. 434, 109 Pac. 214) 566 Davis, Hollett v. (54 Wash. 326, 103 Pac. 423) 415 Davis, Jennings v. ( 187 Fed. 703) 647 (ix) X "Wateb and Mineral Cases. Dominion Coal Co., In re (42 N. S. 108) 704 Dominion Coal Co., Ltd., Attorney General v. (44 N. S. 423) 671 Doughton, United States v. (186 Fed. 226) 736 Dowdy, Zeiger v. (— Ariz. — , 114 Pae. 565) 409 Doyle, Grobe v. (12 B. C. 191) 664 Duckworth v. Watsonville Water & Light Co. (158 Cal. 206, 110 Pac. 927) ... . 128 Duckworth v. Watsonville Water & Light Co. (150 Cal. 520, 89 Pac. 338) ... . 140 E. Enterprise Mining Co., Condor Water & Power Co. v. (— Or. — , 113 Pac. 858) . 412 Enterprise Mining Co., Grant's Pass Banking & Trust Co. v. (— Or. —,113 Pac. 858) 412 Express Oil Co., McLemore v. (— Cal. — , 112 Pac. 59) 232 F. Flynn Group Min. Co. v. Murphy ( 18 Idaho 266, 109 Pac. 851) 619 Funchion, Zimmerman v. (89 C. C. A. 53, 161 Fed. 859) 437 G. Garnet Ditch & Reservoir Company v. Sampson (48 Colo. 285, 110 Pac. 79, 1136) 61 ° Goodspeed Gas & Oil Co., Mound City Brick & Gas Co. v. (— Kan. — , 109 Pac. 1002) 244 Gladys City Oil, Gas & Manufacturing Co. v. Right of Way Oil Co. (— Tex. — , 137 S. W. 171) 4 " Graeff, Bannan v. ( 186 Pa. St. 648, 40 Atl. 805) 548 Grant's Pass Banking & Trust Co. v. Enterprise Mining Co. ( — Or. — , 113 Pac. 858) 412 Gray v. New Mexico Pumice Stone Co. (— N. M. — , 110 Pac. 603) 157 Grobe v. Doyle (12 B. C. 191 ) 664 GufTey Petroleum Co., J. M., v. Murrel, Tax Collector (— La. — , 53 So. 704) . 380 H. Hackett v. Larimer &. Weld Reservoir Company (48 Colo. 178, 109 Pac. 965) 224 Hall v. Hood River Irrigation District (— Or. — , 110 Pac. 405) 151 Harper v. Hill (— Cal. — , 113 Pac. 162) 585 Hewes, Vanderwork (Territory of New Mexico, Intervenor) v. (15 N. M. 439, 110 Pac. 507) 351 Hill, Harper v. (— Cal. — , 113 Pac. 162) 585 Hinderlider, Young v. (15 N. M. 666, 110 Pac. 1045) 338 Hollett v. Davis (54 Wash. 326, 103 Pac. 423) 415 Hood River Irrigation District, Hal] v. (— Or. — , 110 Pac. 405) 151 Hull v. Sangamon River Drainage District (219 111. 454, 76 N. E. 701) 593 I. In re Dominion Coal Co. (42 N. S. 108) 704 Inter-Mountain Mining Co., Washburn v. (— Or. — , 109 Pac. 382) 90 J. J. E. Crowe Coal & Mining Co. v. Atkinson ( — Kan. — , 116 Pac. 490) 446 Jennings V. Davis (187 Fed. 703) 647 J. M. GufTey Petroleum Co. v. Murrel, Tax Collector (— La. — , 53 So. 704) .. C80 Table op Cases Beported. xi Johnson, Avery v. (59 Wash. 332, 109 Pac. 1028) 531 Junila, Washoe Copper Co. v. ( — Mont. — , 115 Pac. 917) 451 K. Kansas Natural Gas Co., Charles West, Attorney General of the State of Okla- homa, Appellant, v. (— U. S. — , 31 Sup. Ct. 564) 184 Kelly, Charlton v. (2 Alaska 532) 293 L. Laclede Oil & Mining Co., Barton v. (— Okla. — , 112 Pac. 965) 259 Larimer & Weld Reservoir Company, Hackett v. (48 Colo. 178, 109 Pac. 965) .. 224 Lee, United States v. (15 N. M. 382, 110 Pac. 607) 479 Lovell, Seibert v. (92 Iowa 507, 61 N. W. 197) 261 Lower Tulle River Ditch Co. v. Angiola Water Co. (149 Cal. 496, 86 Pac. 1081) . 280 M. Mansfield Gas Co. v. Alexander (— Ark. — , 133 S. W. 837) 286 McLemore v. Express Oil Co. (— Cal. — , 112 Pac. 59) 232 Morgan v. Myers (— Cal. — , 113 Pac. 153) 494 Mound City Brick & Gas Co. v. Goodspeed Gas & Oil Co. (— Kan. — , 109 Pac. 1002) 244 Munday, United States v. ( 186 Fed. 375) 722 Murphy, Flynn Group Min. Co. v. (18 Idaho 266, 109 Pac. 851) 619 Murray v. White (— Mont. — , 113 Pac. 754) 538 Murrel, Tax Collector, J. M. Guffey Petroleum Co. v. (—La. — , 53 So. 704) . . 380 Myers, Morgan v. ( — Cal. — , 113 Pac. 153) 494 N. National Mines Co v. Sixth Judicial District Court Humboldt County ( — Nev. — , 116 Pac. 996) 169 New Mexico Pumice Stone Co., Gray v. (— N. M. — 110 Pac. 603) 157 Nome & Sinook Co. v. Snyder ( 187 Fed. 385) 202 O. Ohio Oil Co., Rupel v. (— Ind. — , 95 N. E. 225) 331 Oregon Short Line Railroad Company v. Pioneer Irrigation District (16 Idaho 578, 102 Pac. 904) 1 P. Pennell, Bellevue Gas & Oil Co. v. (76 Kan. 785, 92 Pac. 1101) 396 People ex rel. Chapman v. Sacramento Drainage District (155 Cal. 373, 103 Pac. 207) 107 Perry v. Acme Oil Company (44 Ind. App. 207, 88 N. E. 859) 99 Pioneer Irrigation District, Oregon Short Line Railroad Company v. (16 Idaho 578, 102 Pac. 904) 1 R. Reisner, Simms v. (— Tex. Civ. — , 134 S. W. 278) 238 Right of Way Oil Co., Gladys City Oil, Gas & Manufacturing Co. v. (— Tex. — , 137 S. W. 171) 499 Risch v. Burch (— Ind. — , 95 N. E. 123) 325 Rooney, Van Ness v. (— Cal. — , 116 Pac. 392) 270 Ross v. Board of Supervisors of Wright County (128 Iowa 427, 104 N. W. 506). 358 Rupel v. Ohio Oil Co. (— Ind. — , 95 N. E. 225 ) 331 x ii Water and Mineral Cases. s. Sacramento Drainage District, People ex rel. Chapman v. (155 Cal. 373, 103 Pac. 207) 107 Sampson, Garnet Ditch & Reservoir Company v. (48 Colo. 285, 110 Pac. 79, 1136) 61 ° Sangamon River Drainage District, Hull v. (219 111. 454, 76 N. E. 701) 593 Seibert v. Lovell (92 Iowa 507, 61 N. W. 197) 261 Shaw v. Caldwell (— Cal. — , 115 Pac. 941) 558 Simms v. Reisner (— Tex. Civ. — , 134 S. W. 278) 238 Sinook Co., Nome &, v. Snyder ( 187 Fed. 385) 202 Sixth Judicial District Court Humboldt County, National Mines Co. v. (— Nev. — , 116 Pac. 996) 169 Snyder, Nome & Sinook Co. v. ( 187 Fed. 385) 202 U. Union Oil & Gas Co., Christy v. (— Okla. — , 114 Pac. 740) 254 United States v. Doughton (186 Fed. 226) 736 United States v. Lee ( 15 N. M. 382, 110 Pac. 607) 479 United States v. Munday (186 Fed. 375) 722 V. Vanderwork (Territory of New Mexico, Intervenor) v. Hewes (15 N. M. 439, 110 Pac. 567) 351 Van Ness v. Rooney (— Cal. — , 116 Pac. 392) 270 W. Washburn v. Inter-Mountain Mining Co. (— Or. — , 109 Pac. 382) 90 Washoe Copper Co. v. Junila (— Mont. — , 115 Pac. 917) 451 Watsonville Water & Light Co., Duckworth v. (158 Cal. 206, 110 Pac. 927)... 128 Watsonville Water & Light Co., Duckworth v. (150 Cal. 520, 89 Pac. 338) ... . 140 Weld Reservoir Company, Larimer &, Hackett v. (48 Colo. 178, 109 Pac. 965) .. 224 West, Charles, Attorney General of the State of Oklahoma, Appellant, v. Kansas Natural Gas. Co. (— U. S., 31 Sup. a. 564) 184 Wheelden v. Cranston (12 B. C. 489) 659 White. Murray v. (— Mont. — , 113 Pac. 754) 538 Wright County, Board of Supervisors of, Ross v. (128 Iowa 427, 104 N. W. °506) 358 Y. Young v. Hinderlider (15 N. M. 666, 110 Pac. 1045) 338 Z. Zeiger v. Dowdy (— Ariz. — , 114 Pac. 565) 409 Zimmerman v. Funchion (89 C. C. A. 53, 161 Fed. 859) 437 WATER AND MINERAL CASES ANNOTATED VOL. I OREGON SHORT LINE RAILROAD COMPANY v. PIONEER IRRIGATION DISTRICT et al. [Supreme Court of Idaho, opinion filed May 26, 1909; rehearing denied July 8, 1909.] 16 Idaho 578, 102 Pac. 904. 1. Irrigation District — Land to Be Included in — Use of Not Material. The statute of this state authorizes the board of county commissioners to include within the boundaries of an irrigation district all lands which in their natural state would be benefited by irrigation and are susceptible of irrigation by one system ; and this is true regardless of the question as to what particular use is being made of any particular tract or piece of land at the time the district is organized. 2. Railway within District — Confirmation — Estoppel. Where a railroad corporation owns right of way and station grounds within the boundaries of a proposed irrigation district, and quietly sits by and makes no objection or protest to the organization of such district or the confirmation of the same, such railroad company is concluded by the action of the board of county commissioners in including such right of way and station grounds within the district and by the NOTE. Irrigation Districts, Formation and Management of. I. In General, 5. A. Legislative Power, 5. 1. General Principles, 5. 2. Changes of Law — Retro- active Effect, 6. 3. Limitation of Power of Legislature, 6. B. Legislative Discretion, 6. C. Constitutionality, 6. 1. General Principles, 6. 2. California Statutes, 8. 3. Colorado Statute, 9. 4. Idaho Statute, 9. 5. Nebraska Statute, 9. 6. Washington Statute, 10. D. Unconstitutional Acts, 10. E. Construction of Statutes,. 11. 1. General Rule, 11. 2. California Statute— Wright Act, 11. 3. Idaho Act, 12. 4. Confirmation Act, 12. F. De Facto Districts, 12. G. Public Use, 13. H. Public Municipal Corpora- tions, 14. 1. Generally, 14. 2. Property Exempt from Execution, 16. 3. Officers of, Are Public Offi- cers, 17. 4. Powers of District, 17. I. Right of Eminent Domain* 17. Generally, 17. Right of Way over Private Land, 19. Right of Way over Public Land, 19. Complaint in Condem- nation, 20. Condemning Specific Piece of Property — Determi- nation, 21. Condemnation of Appropri- ated Waters, etc., 21. 7. Jury Trial, 22. 8. Damages, 22. J. Interest and Property in the Water, 23. K. Bankruptcy and Dissolution, 24. f>. Water and Mineral Cases. [Idaho judgment of the district court confirming such district, and cannot attack the juris- diction of the district to assess such lands on the ground that the same were not benefited, in a collateral proceeding (following Knowles v. New Sweden Irrigation District, 16 Idaho, 217, 101 Pac. 81). 3. Right of Way and Station — Board Determining Benefit — Action Final. Whether the right of way and station grounds of a railroad company will be benefited by a system of irrigation works within an irrigation district is committed to the judgment of the board of county commissioners; and when such board ha« determined that such land will be benefited, and includes such land within the boundaries of such district, the action of such board is final and conclusive against a collateral attack. 4. Right of Way and Depot Grounds — Question of Benefit — How Determined. The mere fact that the railroad company for the time being is using its land for right of way and depot purposes is not a reason why such land will not be benefited by a system of irrigation works controlled by an irrigation district, as the question of benefits is to be determined with reference to the natural state and condition of the land and not with reference to the use being made of such land. II. Proceedings for Organization, 25. A. In General, 25. B. Petition, 25. 7. 8. Generally, 25. Boundaries, 26. a. Generally, 26. b. Modification of, 27. Signers, 28. a. Generally, 28. b. ."Owners" Construed, 28. c. "Dummy" Owners, 29. d. Owners of City Lots, 29. e. Tenants in Common, 30. f. Married Women, 30. g. Purchasers of Railroad Lands, 30. h. Purchasers of School Lands, 30. Bond, 31. a. Defective, 31. b. Conditions of, 31. Publication of Petition, 31. Notice, 32. a. Generally, 32. b. By Petitioners, 32. c. Form of, 33. d. Description of District in, 33. e. Service of, 33. Presentation at "Regular Meeting," 34. Election, 34. a. Generally, 34. b. Proclamation for, 34. c. Election Precincts, 34. d. Keeping Open Polls, 35. e. Canvassing Votes and Declaring Result, 35. (1) (2) (3) (4) Territorial Extent of Dis- trict, 35. 1. Decision of Board of Super- visors Conclusive, 35. 2. Inclusion, 37. a. Generally, 37. b. Change of Boundaries, 37. o. Assessment of Benefits, 37. Idaho Act, 37. Assessing Tracts and Listing, 38. Railroad Right of Way, Stations, etc., 38. Constitutionality of Statute, 39. d. PubUc Lands, 39. e. City or Town, 39. f. Waiver of Right, 40. 3. Exclusion, 40. a. Generally, 40. b. After Organization, 40. c. Land Already under Ditch, 41. d. Nonirrigable Lands, 41. D. Watering Lands Out of Dis- trict, 42. E. Costs and Expenses, 42. III. Confirmation Proceedings, 43. A. In General, 43. B. Constitutionality, 43. C. Construction, 44. D. Nature of Proceedings, 44. E. Directors May Institute, 45. F. Notice of, 45. 1. Generally, 45. 2. Contents of, Description, 45. 3. Personal Service of, Not Necessary, 46. 1909] Obegon Shoet Line R. Co. v. Pioneee Iekigation Dist. 3 6. Determining Benefits — Board Not Limited to Agricultural Land. In determining whether lands will be benefited by a system of irrigation works, the board of county commissioners is not limited to lands which will be used for agricultural purposes or upon which water will be beneficially used, or to lands devoted to any particular use; but the board is empowered and given jurisdiction to determine whether all lands within the district will be benefited, without reference to the use to which the same will be put. 6. Petition for Organization — Boundaries — Description of Tracts. Section 2 of the Laws of 1899, p. 408, as amended by Laws 1901, p. 191, § 1, requires the petition for the organization of an irrigation district to describe the boundaries of such district, but does not require the petition to contain a specific and accurate description of each tract or legal subdivision of land within the district. 7. Notice — Of Presentation and Hearing — Description in. Such statute does not require that the notice given of the presentation of the petition or the notice of the time when the same will be heard contain a description of the different tracts or legal subdivisions within the boundaries of the proposed district. G. Jurisdiction, 46. 1. Generally, 46. 2. Questions Reviewable, 47. 3. Illegal Bond Issue, 47. H. Errors, etc., Disregarded, 47. I. Issues, 48. 1. Generally, 48. 2. Defense of Fraud, 48. 3. Burden of Proof, 48. J. Decree of Confirmation, 49. 1. Generally, 49. 2. Collateral Attack, 49. 3. Bond Issue, 49. 4. Obtained by Fraud, 49. 5. Res Adjudicata, 50. K. New Trial, 50. L. Right of Appeal, 50. M. Action to Set Aside, 50. IV. Attack on District Bonds, etc., 51. A. In General, 51. By District, 51. By Individual, 51. By the People — Quo War- ranto, 52. Collateral Attack, 52. Limitation of Action, 53. Officers of — Powers and Duties, 53. A. In General, 53. Board of Directors, 54. 1. Generally, 54. 2. Duties and powers of, 54. a. Generally, 54. b. Under California Laws — Election at Large, 54. c. Under Nebraska Laws, 54. B. C. D. E. F. B. d. Under Oregon Laws, 55. e. To Make Plans and Specifications, 55. Collector, 56. Treasurer, 56. Superintendent of Irriga- tion, 57. Salaries of, 57. 1. Generally, 57. 2. Mandamus to Enforce, 57. VI. Bonds of, 58. A. In General, 58. B. Attack on, 58. 1. Generally, 58. 2. Action to Cancel, 58. a. Generally, 58. b. Complaint, Allegations in, 58. c Limitation of AetionB, 59. 3. Action to Annul Tax Sale, etc, 59. C. Bona Fide Purchasers, 59. 1. Generally, 59. 2. Recovery of Consideration, 60. D. Confirmation Proceedings, 61. 1. Generally, 61. 2. Board of Directors May Bring Action, 61. 3. Landowner May Bring Action, 62. 4. Notice, 62. 5. Petition and Prayer, 62. 6. Burden of Proof, 62. 7. Decree, 63. E. Coupons, Payment of, 63. F. Date of Issue, 63. Water and Mineral Cases. [Idaho 8. Examining Tracts — Apportioning Benefits. Section 11 of the act (Laws 1899, p. 414), as amended by Act March 18, 1901 (Laws 1901, p. 194, § 2), requires the board to examine all tracts and legal subdivisions within the boundaries of the district, and to apportion the benefits according to their judgment. 9. Apportioning Benefits — Description of Tracts — Unnecessary When. This provision of the statute, which requires the board to examine each particular legal subdivision or tract within the district and apportion the benefits, does not require the beard, in designating the benefits, to particularly and specifically describe each tract or fractional part of such legal subdivision according to the separate ownership thereof where the benefits accruing to all parts of such legal subdivision are the same. 10. Necessary When. If, however, in assessing the benefits, the board determine that any part or tract less than a legal subdivision be benefited differently from the remainder or any other part or tract, then the board is required to designate and describe the benefit to such particular tract or fractional part. 11. Proceeding in Rem — Lands Including Railway. The benefits fixed by the board are laid against the land, the proceeding is a proceeding in rem, and the benefits have reference to the land; and where the board in preparing a list of the lands against which benefits are laid, designates upon such list the legal subdivisions across which the right of way of a railroad company T. J. K. G. De Facto District, 64. H. Disposition of Methods of, 64. 1. California Statute, 64. 2. Nebraska Statute, 65. 3. Washington Statute, 65. Election for Bond Issue, 66. 1. Generally, 66. 2. Notice, 66. 3. Second Election, 66. Exclusion of Territory, 67. Procedure to Enforce, 67. 1. Action at Law, 67. 2. Mandamus, 68. a. To Compel Payment, 68. b. To Compel Levy of Assessment, 68. Form of, 69. Interest on, 69. I \NCE OF, 70. Lien on Lands, 71. Supplying Water for Use Outside of District, 72. Term of, 72. VII. Ass i • , 72. A. As to, Generally, 72. B. As to Levy by Board of Di- rectors, 73. 1. Generally, 73. 2. California Act, 73. 3. Idaho Act, 74. C. As to Neglect or Refusal to Levy, 74. 1. Duty of County Board, 74. 2. Mandamus, 75. D. Annual to Pay Interest, Dis- cretion, 75. E. F. G. H. I. J. K. L. M. N. L. M. N. 0. P. Q- P. Q. VIII. A. B. C. Basis of Assessment, 76. Confirmation, 78. Current Expenses to Meet, 79. Description of Land, 79. Election, 79. Excessive Levy, 79. Illegal Levy, 80. Lien on Land, 81. Misnomer, 81. Property Subject to, 81. 1. Lands within District, 81. 2. Lands Detached from Dis- trict, 82. 3. Telegraph Poles and Wires, 83 4. Pueblo Lands of City, 83. 5. Railroad Right of Way, 83. 6. United States Lands, 83. Sale of Land to Enforce Payment, 84. 1. In California, 84. 2. In Washington, 84. 3. Misnomer— Effect on Tax Deed, 85. 4. Restraining Sale, 85. Segregation of Fund, 85. Validity — District de Jure, 85. Powers, Duties and Liabili- ties, 86. The Powers of, 86. The Duties of, 86. 1. Generally, 86. 2. To Supply Water, 86. The Liabilities of, 89. 1. Generally, 89. 2. To Be Sued, 89. 3. As a Nuisance, 89. 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 5 passes, and designates the rate per acre apportioned to each legal subdivision, it is a substantial compliance with the statute, and is not void because the right of way is not particularly and separately described. 12. List — Including Railway — Notice of Benefit — Collateral Attack. The list thus prepared is notice to the railway company of the benefits assessed against each legal subdivision, of which its right of way is a part; and where the list has been thus prepared, and no objection is made by the company on account of a defective description or want of description at the time of the hearing of the confirmation of said district, the owner of such property is concluded in a collateral attack by the judgment. 13. Confirmation — Scope of Inquiry — Right to Be Heard. Section 19, Laws 1899, p. 41S, empowers the district court upon the hearing for confirmation, to determine the legality and regularity of all the proceedings taken with reference to the organization of said district and by such district up to the time the judgment of confirmation is rendered, including all proceedings affecting the legality or validity of the bonds issued by said district, and the apportionment of costs and the lists of such apportionment ; and every person interested in said district is given an opportunity to appear and contest the same. 14. Confirmation Proceedings — Scope of Inquiry — Statutory Provision. Section 2 of the Act of March 18, 1901 (Laws of 1901, p. 194), amending the Laws of 1899 (Laws 1899, p. 414, § 11), expressly provides that "The proceedings Irrigation Districts, Formation and Management of. I. In General. A. Legislative Power. 1. General Principles. The power of congress to pass an act is limited to authority specially con- ferred by the Federal Constitution. See Bozant v. Campbell, 9 Rob. (La.) 411 (1845). But the power of the state leg- islature to enact laws is limited or restricted by express inhibitions of the Constitution only. United States. — Talcott v. Pine Grove Township, 1 Flip 120, 161, Fed. Cas. No. 13735 (1872). California. — People v. Seymour, 16 Cal. 332, 76 Am. Dec. 521 (1860). Connecticut. — Lowry v. Gredley, 30 Conn. 450 (1862). Georgia. — Boston v. Cummins, 16 Ga. 102, 60 Am. Dec. 717 (1854). Indiana. — Doe ex dem. Chandler v. Douglas, 5 Blackford (Ind.) 10, 44 Am. Dec. 732 (1846) ; Beebe v. State, 6 Ind. 501, 525, 540 ( 1855) ; Madison, etc. R. Co. v. Whiteneck, 8 Ind. 222 (1856); La- fayette & B. R. Co. v. Geiger, 34 Ind. 185 (1870). Louisiana. — Bozant v. Campbell, 9 Rob. 411 (1845) ; State v. Gutierrez, 15 La. Ann. 190 (1860). ' New York. — Bloodgood v. Mohawk & H. R. Co., 18 Wend. (N. Y.) 9, 31 Am. Dec. 313 (1837). North Carolina. — State v. Moore, 104 N. C. 714, 10 S. E. 143, 17 Am. St. Rep. 696 (1889). Vermont. — Thorpe v. Rutland R. Co , 27 Vt. 140, 62 Am. Dec. 625 (1854). Compare Cincinnati W. & Z. R. Co. v. Clinton County Com'rs, 1 Ohio St. 77 (1852). Within this general power of the leg- islature is the right and power of pro- viding for irrigation of certain kinds of land. See Fallbrook Irr. Dist. v. Bradley (dictum of Bradley, J.), 164 U. S. 112, 166, 41 L. Ed. 369, 391, 17 Sup. Ct. 56 (1896). Gutierres v. Albu- querque L. & Irr. Co., 188 U. S. 545, 47 L. Ed. 588, 23 Sup. Ct. 338 (1903). Board of Supervisors of Riverside County v. Thompson, 122 Fed. 860 (1903). In re Madera Irr. Dist, 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). The manner in which an irrigation district may be created, and the duties of the officers thereof, are matters which are determined by statute in that re- gard. See post V, A and B, 2, and VIII, A, this note. 6 Water and Mineral Cases. [Idaho of said board of directors in making such apportionment of cost, and the said list of such apportionment, shall be included, with other features of the organization ot such district which are subject to judicial examination and confirmation, as provided in sections sixteen, seventeen, eighteen, nineteen and twenty of this act. 15. Assessing Benefits— Failure to List According to Ownership— Listing by Legal Subdivision. The fact that the board of directors in assessing benefits to lands within an irrigation district, fail to list the lands according to each separate ownership, but do list the same according to each legal subdivision, does not show that the board did not intend to assess benefits to all of the lands within the legal subdivision. 16. Less than Legal Division Benefited — Procedure of Board. The statute requires the board to assess benefits against each legal subdivision or tract within the district, and where less than a legal subdivision is benefited in a different degree or amount than the remainder of the legal subdivision or tract, then the board is required to fix and determine the benefits accruing to such particular tract; but where the entire legal subdivision or tract is benefited equally, then the board may lay the assessment against the legal subdivision, and thus include the smaller or fractional parts thereof. 2. Changes of Law — Retroactive Effect. The statutes relating to the creation, organization and management of irriga- tion districts are subject to legislative change from time to time, and these changes retroact on existing districts. Thus, it has been held that the Califor- nia Act of March 31, 1897 (St. 1897, p. 254), providing for the organization and government of irrigation districts, applies to existing districts organized under prior laws. Board of Supervisors of Riverside County v. Thompson, 122 Fed. 860 (1903). 3. Limitation of Power of Legis- lature. The legislative power to change or modify irrigation district laws, however, is limited in that the legislature can regulate the management only; it cannot go to the extent of affecting any vested interests or rights, because the organiza- tion of an irrigation district is regarded as a contract between the state and the individuals whose property is affected thereby, and as such is protected by sec- tion 10 of article I of the Federal Con- stitution, preventing t be state from [ng laws impairing the obligation of racts. Merchants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 9.37 (1994). B. Legislative Discretion. It is within the discretion of the leg- islature to determine the mode or man- ner in which an irrigation district shall be formed and managed, and it may authorize the inhabitants of a region or settlement, under restrictions and methods of procedure provided, to organize themselves into a public munic- ipal corporation for governmental pur- poses; and such public municipal cor- poration need not be required to be formed in the manner, or provided with the powers of municipal corporations of this class. In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). The legislature having exercised its discretion in this regard, it is not for the courts to question the policy or prudence of the law as it has been en- acted, and it is no valid objection to the organization of the district that persons not interested in the land affected may compel the organization, or that the statute does not provide for a hearing from the owners of the land affected prior to the organization of the district. In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). C. Constitutionality. 1. General Principles. Acts providing for the organization and management of irrigation districts, which are general in their nature, ap- plying equally to all persons embraced 1909] Oregon Shobt Line E. Co. v. Pioneer Irrigation Dist. 7 17. Assessment — Neglect to Levy against Right of Way and Station Grounds —Effect of. The fact that the officials of an irrigation district neglect to assess the right of way and station grounds of a railroad company for certain years is not a reason why such right of way and station grounds are not subject to assessment by said district; and the company cannot defeat a future assessment by reason of the fact that its property was not assessed for any particular year or years prior to the assessment made. 18. Assessing Benefits — Want of Notice of Proceeding — Due Process of Law. The fact that the statute makes no provision for notice to the landowner that on a particular day the board of directors will assess benefits to the lands within the district will not render such statute unconstitutional, where the statute does provide for notice to be given of the proceedings to organize such district and notice of the hearing for the confirmation of the organization and proceedings of such district, at which hearing the court is required to examine all the proceedings involved in the organization of such district including the assessment of benefits. within a class and founded upon a proper distinction (Escondido High School Dist. v. Escondido Seminary, 130 Cal. 128, 62 Pac. 401—1900) are con- stitutional in principle and are held valid where they keep within the scope of their object, and are not violative of any restrictions of the state or Federal Constitutions or of any fundamental rights guaranteed thereby. United States. — Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896) ; Tulare Irr. Dist. v. Shepard, 185 U. S. 1, 13, 46 L. Ed. 773, 22 Sup. Ct. 531 (1902) ; Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). Arizona. — Oury v. Goodwin, 3 Ariz. 255, 26 Pac. 376 (1891). California. — Lamb v. Reclamation Dist., 73 Cal. 125, 14 Pac. 625, 2 Am. St. Pep. 775 (1887); Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379 (1888); Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 Pac. 825 (1889); Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (1890) ; In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. Rep. 106, 28 Pac. 272, 675, 14 L. R. A. 755 (1891) ; In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897); People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86 (1900— Confirmatory Act of 1889) ; San Joaquin & Kings River Canal & Irr. Co. v. Stan- islaus County, 155 Cal. 21, 99 Pac. 365 (1908— Act March 12, 1885, Stats. p. 85). Colorado. — Anderson v. Grand Valley Irr. Dist., 35 Colo. 525, 85 Pac. 313 (1906— Laws 1901, p. 198). Idaho. — Pioneer Irr. Dist. v. Bradley, 8 Idaho 310, 68 Pac. 295, 101 Am. St. Rep. 201 (1902) ; Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905— Laws 1903, p. 15); Settlers Irr. Dist. v. Settlers Canal Co., 14 Idaho, 504, 94 Pac. 829 (1908). Illinois. — See Elmore v. Drainage Commrs., 135 111. 269, 25 N. E. 1010, 25 Am. St. Rep. 363 (1890). Iowa. — See Beebe v. Magoun, 122 Iowa 94, 97 N. W. 986, 101 Am. St. Rep. 259 (1904). Missouri. — See Mound City L. & 8. Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 94 Am. St. Rep. 727, 60 L. R. A. 190 (1902). Nebraska. — Paxton & Hurshey Irr. C. & L. Co. v. Farmers & M. L. & Irr. Co., 45 Neb. 884, 64 N. W. 343, 50 Am. St. Rep. 585, 29 L. R. A. 853 (1895); Board of Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 1086 (Act March 26, 1895). New York — See Matter of Tuthill, 163 N. Y. 133, 79 Am. St. Rep. 574, 57 N. E. 303, 49 L. R. A. 781 (1900). Oregon. — Umatilla Irr. Co. v. Barn- hart, 22 Or. 3S9, 30 Pac. 37 (1892); Little Walla Walla Irr. Dist. v. Preston, 46 Or. 5, 78 Pac. 982 (1904). Washington. — Lewis County v. Gordon, 20 Wash. 80, 54 Pac. 779 (1898) ; Kin- s "Water and Mineral Cases. [Idaho 19. Assessment — For Maintenance and Bonded Indebtedness — Validity. If the records show that the hoard of directors, in levying an assessment for maintenance and to pay the bonded indebtedness of an irrigation district, sub- stantially complied with the statute, and the assessment roll is made up in substantial compliance with the statute, the assessment thus levied will be upheld if the description of the property is sufficient to give the landowner notice that such property is burdened with such assessment. 20. Of Railroad Property — Jurisdiction of State Board of Equal- ization. The power and jurisdiction of the state board of equalization with reference to the assessment of railroad property has reference to assessments made for general state, county, and municipal purposes, and not to assessments made for local improvements. 21. Territory Not Within District — Jurisdiction. Where territory has not been included within the boundaries of an irrigation district in accordance with the laws governing the taking of territory into an irrigation district, the district has no power or jurisdiction to assess the property so included. 22. Change of Boundaries — Want of Notice — Effect of. Where it appears that an irrigation district has attempted to change the bound- aries of such district so as to include other territory, but has failed to give the notice cade v. Witherop, 29 Wash. 10, 69 Pac. 399 (1902). See Board of Directors Mid- dle Kittitas Irr. Dist. v. Peterson, 4 Wash. 147, 29 Pac. 995 (1892). Thus, an act of this nature providing for the assessment of land in an irriga- tion district according to the value of the land, and not according to the benefit to be received by each parcel, to pay for the public improvement, is constitutional, except in case of an ex- press constitutional prohibition, for the reason that such assessments are in- cluded in the inherent power of taxa^ tion, which is not limited to benefits received. In re Madera Irr. Dist., 92 Cal. 296, 307, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891); Schall v. Norristown, 6 Leg. Gaz. (Pa.) 157 ( 1874) . See post VII, A and E, this note. 2. California Statutes. Irrigation district legislation, under which a municipal public corporation may be created for the purpose of fur- nishing water for the irrigation of the land within the district, has been sus- tained upon the same ground as has the levee and reclamation district legisla- tion, which is, in effect, that the land included within the limits of such dis- trict requires, by reason of its situation and condition, the protection or recla- mation thus made possible, and that it is for the public welfare that such pro- tection or reclamation should be afforded such land. Jenison v. Redfield, 149 Cal. 500, 87 Pac. 62 (1906). See In re Madera Irr. Dist., 92 Cal. 296, 311-318, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). The California Act of March 7, 1887 (Sess. Laws 1887, p. 29), known as the Wright Act, providing for the organiza- tion and government of irrigation dis- tricts and the provisions thereof relative to the condemnation of private property, land, water, etc., for the uses, are con- stitutional. United States. — Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896) ; Herring v. Modesto Irr. Dist., 95 Fed. 705, 715, 716 (1899); People ex rel. Brady v. Brown's Valley Irr. Dist., 119 Fed. 535, 538 (1902). California. — Turlock Irr. Dist. v. Wil- liams, 76 Cal. 360, 18 Pac. 379 (1888); Central Irr. Dist. v. De Lappe, 79 Cal. 351, 353, 21 Pac. 825 (1889); Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (1890); Modesto Irr. Dist. v. Tre- gea, 88 Cal. 334, 352, 26 Pac. 237 (1891) ; In re Madera Irr. Dist., 92 Cal. 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 9 required by the statute of the intention of such district to change such boundaries, and the owners of land attempted to be taken into such district have no notice of the change in boundaries and the inclusion of such land within the district, such owners are not prevented from challenging the legality of the change in the boundaries of such district until they have had their day in court. (Sullivan, C. J., dissenting in part.) Appeal from the District Court of Canyon County. Action by the Oregon Short Line Railroad Company against the Pioneer Irrigation District, its treasurer and ex officio tax collector of the irrigation district, to restrain collection of assessment. Appeal from judgment in favor of the defendants. Attorneys for appellant — Rice, Thompson & Buckner. Attorneys for respondent — P. L. Williams, D. Worth Clark, and W. A. Stone. Sullivan, C. J., dissenting in part. 296, 307, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891) ; Wood- ward v. Fruitvale Sanitary Dist., 99 Cal. 554, 562, 34 Pac. 239 (1893); Cul- len v. Glendora Water Co., 113 Cal. 503, 45 Pac. 822, 1047 (1896). See 39 Pac. 769 (1895); In re Central Irr. Dist,, 117 Cal. 382, 389, 49 Pac. 354 (1897) ; Escondido High School Dist. v. Escondido Seminary, 130 Cal. 128, 62 Pac. 401 (1900). Nebraska. — See Board of Directors Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 417, 423, 64 N. W. 1086 (1895) ; State ex rel. Patterson v. Board of Commis- sioners, 47 Neb. 450, 66 N. W. 434 (1896). Tennessee. — See Reelfoot Lake Levy Dist. v. Dawson, 97 Tenn. 179, 36 S. W. 1041 (1896). Confirmation Act of March 16, 1889, held to be a separate and independent statute amendatory of the Wright Act, but no part thereof, provided special proceedings in which the aid of the court may be invoked to secure evidence and determine as to the due and regular organization of any irrigation district and the regularity of any bond issue by it and that the limitation of two years, provided in section 3 of the Wright Act of 1891, in which a suit shall be com- menced or defense made attacking the validity of the organization, does not apply to special proceedings instituted by the board under the Act of 1889. In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897). 3. Colorado Statute. The Colorado Irrigation District Law of 1901, p. 198, is not violative of the provision of the statute requiring all acts of the legislature to contain but one subject, which shall be clearly expressed in the title; or of the clause guaranty- ing due process of law; or of the pro- vision that waters of streams shall be the property of the public, subject to appropriation, Anderson v. Grand Val- ley Irr. Dist., 35 Colo. 525, 85 Pac. 313 (1906). 4. Idaho Statute. The Idaho Irrigation District Law (Laws 1903, p. 150), providing for the creation and management of such dis- tricts is not violative of section 16 of article III of the State Constitution re- quiring all laws to embrace but one subject, which shall be clearly stated in its title, and does not in any other par- ticular violate the State Constitution. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). 5. Nebraska Statute. The Nebraska Statute (Act March 26, 1895) providing for irrigation districts 10 Water and Mineral Cases. [Idaho STEWART, J. The Pioneer Irrigation District is an irrigation dis- trict organized on the day of July, 1901. The Oregon Short Line Railroad Company, a corporation, owns right of way and depot grounds within the boundary lines of said district. In the year 1905 the right of way and station grounds of the railroad company were assessed for the purpose of maintaining said irrigation district. The company prose- cutes this suit to obtain a restraining order restraining said district and its treasurer from collecting taxes upon the right of way and station grounds of said company. The cause was tried to the court and a decree entered in favor of the railway company and in which the court ad- judged: "That the defendant the Pioneer Irrigation District or its officers have no jurisdiction or authority to assess or levy any taxes upon any part of the property described in plaintiff's complaint, or the property herein described for the purpose of maintaining the said Pioneer the provisions of the State Constitution (art. I, § 13) and of the Federal Con- stitution (§ 1, 14th Amendment) and a is copied in all essential respects from the California Wright Act, and is con- stitutional. Board of Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 186 (1895). It is not uncon- stitutional either on the ground that the effect thereof is to confer legislative powers upon county boards or that the power thereby conferred upon the dis- tricts to levy taxes is without limita- tion. Board of Directors Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 186 (1895). 6. Washington Statute. The Washington Irrigation Law (Acts 1890, 1 Ballinger'8 Ann. Codes and Stats., § 410G) is almost identical with the California Statute known as the Wright Act, and is constitutional. Rothchild Bros. v. Rollinger, 32 Wash. 307, 73 Pac. 367 (1903). D. Unconstitutional Acts. An irrigation district law providing for the organization of such a district by a majority vote of the landowners within the district, and providing that the bonds and interest thereof issued by the district shall be paid by annual as- sessments on the property within the district, and on which land such bonds and interest are a lien, upon the organ- ization of a district under the provisions of such law, becomes a contract within subsequent act of the legislature (Cal. Stats. 1893, p. 175) amendatory of the original act, authorizing the board of directors of the irrigation district, with- out the consent of the landowners within the district, to pledge the property of the district as security for bonds issued, is unconstitutional in that it impairs the obligation of a contract created by the organization of the district. Merchants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937 (1904). The legislature has no power to dis- pose absolutely of the property within an irrigation district, depriving the beneficiary owners thereof without due process of law, and for this reason an act of the legislature authorizing a con- veyance of the statutory power to manage and control the water system and other properties of an irrigation district is in violation of the provision of the State Constitution (§ 13, art. XI) prohibiting the delegation of powers (Merchants Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937—1904) ; and it was on this ground that the pro- visions of the Wright Act authorizing the board of directors of an irrigation district to pledge by mortgage, deed of trust, or otherwise, all the property of 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 11 Irrigation District." Then follows a description of the property. A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling the motion for a new trial. The questions for determination and which are presented by the rec- ord are: First, is the plaintiff's right of way and station grounds such property as can be assessed for and subjected to the payment of a tax for the purpose of maintaining said district ? Second, if such property is assessable, did the officers of the irrigation district, at the time of the organization thereof, comply with the law so as to be able thereafter to assess the property belonging to the railway company situated within said district? Third, if such property be assessable, and if the officers at the time of the organization of the district complied with the law, did they thereafter pursue the course pointed out by statute for the collection of such tax? sessment conclusive evidence of the regu- larity of proceedings from the time of the levying of the assessment until the execution and delivery of the deed, are independent of the clause in the same act making such deed prima facie evi- dence as to the things which are therein enumerated; the former sections refer to proceedings other than those to which the deed is made merely prima facie evidence. Escondido High School Dist. v. Escondido Seminary, 130 Cal. 128, 62 Pac. 401 (1900). The provision of the Wright Act (§ 37) requiring notice to he given to taxpayers of the meeting of the board of equalization is valid notwithstanding the fact that it does not provide that a notice shall be given of the final act of the board, which is the levying of the assessment, for the reason that this final act is a matter of record regarding which parties interested can ascertain the facts from the record. Lahman v. Hatch, 124 Cal. 1, 56 Pac. 621 (1899). Under the original provisions of the Wright Act (§38) the salaries of officers pro- vided for therein were not an invalid indebtedness of the irrigation district, although in excess of the amount pro- vided for in that act, and are not af- fected by amendments to that act, ex- cept indebtedness not exceeding two thousand dollars (Mitchell v. Patterson, a district as additional security for the payment of its bonds, was held uncon- stitutional. Merchants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937 (1904). E. Construction of Statutes. 1. General Rule. In California it is held that the pro- visions of a statute regulating the proceedings for the formation of an ir- rigation district and the management thereof after its formation are to be liberally construed so as to carry out the purpose of the law (Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 Pac. 825 — 1889) ; but in Colorado it is held that in as much as these statutes im- pose special burdens, they are to be strictly construed and in case of doubt are to be construed in favor of a taxpayer. Ahern v. Board of Directors of High Line Irr. Dist., 39 Colo. 409, 89 Pac. 963 (1907). In those cases where the statutes are in conflict, the later statute controls as being the last expression of the intention of the legis- lature relative to the subject. Fravert v. Mesa County Commissioners, 39 Colo. 71, 88 Pac. 873 (1907). 2. California Statute — Wright Act. The provisions of the Wright Act (§§ 7, 30), making a tax deed to land sold in enforcement of an irrigation as- 12 Water and Mineral Cases. [Idaho Counsel for respondent contend that the right of way and station grounds of the railway company are used strictly for railroad purposes and that water for the purpose of irrigation is not required and has never been used upon such grounds ; and for that reason the district had no jurisdiction to assess such property. This argument of counsel is founded upon the claim that the power to assess as conferred by the irrigation law is based upon special benefits to the property assessed; and, inasmuch as the right of way and station grounds of the company cannot in any way be benefited by such improvement or the use of water, for that reason the district had no jurisdiction to make such assessment. Section 2 of the act of March 6, 1899 (Laws 1899, p. 408), as amended by act of March 18, 1901 (Laws 1901, p. 191, § 1), provides for the organization of an irrigation district on presentation of a peti- 120 Cal. 286, 52 Pac. 589—1898). The question whether this limitation on the amount of indebtedness which an irri- gation district may incur prohibits the incurring of an indebtedness for any purpose, including salaries of officers authorized by the act and essential for the transaction of business, was raised, but not decided, in Mitchell v. Patterson, 120 Cal. 286, 52 Pac. 589 (1898). See Welch v. Strother, 74 Cal. 413, 16 Pac. 22 (1887); Lewis v. Widber, 99 Cal. 412, 33 Pac. 1128 (1893) ; Hunt v. Brod- erick, 104 Cal. 313, 37 Pac. 1040 (1894) ; Kauch v. Chapman, 16 Wash. 568, 579, 48 Pac. 253, 58 Am. St. Rep. 52, 60 (1897). 3. Idaho Act. The fact that the Idaho Statute (Laws 1899, p. 408, § 11, as amended by Laws 1901, p. 194) makes no pro- rision for notice to the landowner that on a particular day the board of di- rectors will assess benefits to the lands within the district will not render such statute unconstitutional where the stat- ute does provide for notice to be given of the proceedings to organize such dis- trict and notice of the hearing for the confirmation of the organization and proceedings of such district, at which hearing the court is required to exam- ine all the proceedings involved in the organization of such district, including the assessment of benefits. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho, 578, 102 Pac. 904 (1909). 4. Confirmation Act. The California Confirmation Act of 1889 (Stats. 1889, p. 212) has been held to be a separate and independent statute amendatory of the Wright Act, but forming no part thereof, and provides special proceedings in which the aid of the court may be invoked by an irriga- tion district to secure evidence and de- termine as to the clue and regular or- ganization of the district and the reg- ularity and validity of any bond issue by it; the limitation of two years pro- vided in section 3 of the Wright Act, as amended in 1891, for the commence- ment of actions and defenses made at- tacking the validity of the organization, has no application to the proceedings under said Confirmation Act. In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897). F. De Facto Districts. An irrigation district is a quasi pub- lic municipal corporation (see post I, H, 1, this note), and where an attempted organization of such a district fails to amount to a de jure municipal corpora- tion, it may act as a corporation de facto, and its actions as such will be binding on everybody except the state, and any bonds issued by it will be valid. 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 13 tion. The petition is required to be accompanied with a map of the proposed district; this map is required to show the location of the proposed canal or other works by means of which it is intended to irrigate the proposed district. The statute provides that a hearing shall be had after notice, by the board of county commissioners, at which hearing the board may make such changes in the proposed boundaries as they may find proper and as are approved by the state engineer, and shall establish and define such boundaries provided, "That said board shall not modify said boundaries, so as to except from the operations of this act any territory within the boundaries of the district proposed by said petitioners, which is susceptible of irrigation by the same system of works applicable to other lands in such proposed district; nor shall any lands which will not in the judgment of said board be benefited by irriga- . United States. — Baltimore & P. R. Co. v. Fifth Baptist Church, 137 U. S. 568, 571, 34 L. Ed. 784, 11 Sup. Ct. 185 (1890) ; Shapleigh v. City of San Angelo, 167 U. S. 646, 655, 42 L. Ed. 310, 314, 17 Sup. Ct. 957 (1897) ; Tulare Irr. Dist. v. Shepard, 185 U. S. 1, 13, 46 L. Ed. 773, 22 Sup. Ct. 531 (1902); Miller v. Perris Irr. Dist., 85 Fed. 693 (1898), 99 Fed. 143 (1900) ; Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). Alabama. — Snider's Sons Co. v. Troy, 91 Ala. 224, 8 So. 658, 24 Am. St. Rep. 887 (1890). California. — People v. Montecito Water Co., 97 Cal. 276, 32 Pac. 236 (1893); Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894). Michigan. — Swartwout v. Michigan Air Line Co., 24 Mich. 389, 393 (1872). A T eio Jersey. — Stout v. Zulick, 48 N. J. L. (19 Vr.) 599, 7 Atl. 362 (1886). New York. — Lamming v. Galusha, 81 Hun (N. Y.) 247, 30 N. Y. Supp. 767 (1894), affirmed in 151 N. Y. 648, 45 N. E. 1132 (1896). Texas. — American Salt Co. v. Heiden- heimer, 80 Tex. 344, 15 S. W. 1038 (1891). The legality of its organiza- tion cannot be collaterally attacked by an individual or pleaded by the district itself for the purpose of avoiding obliga- tions which it has incurred while acting as such district. Herring v. Modesto Irr. Dist, 95 Fed. 705 (1899). See post III, J, 2 and IV, E, this note. G. Public Use. The irrigation of arid lands is a pub- lic purpose, and water put to such pur- pose is put to a public use. United States. — In re Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (18G9) ; Clark v. Nash, 198 U. S. 361, 49 L. Ed. 1085, 25 Sup. Ct. 676 (1905). Arizona. — Orey v. Goodwin, 3 Ariz. 255, 26 Pac. 376 (1891). California. — Crescent Canal Co. v. Montgomery, 143 Cal. 248, 76 Pac. 1032 (1894); San Joaquin & Kings River Canal & Irr. Co. v. Stanislaus Co., 155 Cal. 21, 99 Pac. 365 (1908). Colorado. — Yonker v. Nichols, 1 Colo. 551 (1S72); Schilling v. Rominger, 4 Colo. 100 (1S78); De Graffenried v. Savage, 9 Colo. App. 131, 47 Pac. 902 (1897). Montana. — Ellinghouse v. Taylor, 19 Mont. 462, 48 Pac. 757 (1897). Nebraska. — Crawford Co. v. Hathaway, 67 Neb. 329, 93 N. W. 781, sub nom. Crawford Co. v. Hall, 60 L. R. A. 889 (1903— Laws 1893 p. 244) ; McCook Irr. & W. P. Co. v. Crews, 70 Neb. 115, 102 N. W. 249 (1905). Utah.— Nash v. Clark, 27 Utah 158, 75 Pac. 371, 101 Am. St. Rep. 953, 1 L. R. A. (N. S.) 208 (1904), affirmed 14 Water and Mineral Cases. [Idaho tion by said system be included within such district." It will thus be seen from the provisions of this act that a final hearing is provided for after notice to all parties interested, at which the board may make such changes in the proposed boundaries as they may find proper, but shall not except any territory within the boundaries which is susceptible of irrigation by the same system of works applicable to other lands, or include within the boundaries of such district any lands which will not in the judgment of said board be benefited by irrigation by said system. At the final hearing thus provided for the board of commissioners were necessarily required to determine whether or not the lands to be included within said district would be benefited by the system of irriga- tion proposed, and were precluded by the statute from including within the district any lands which would not in the judgment of the board 198 U. S. 361, 49 L. Ed. 1085, 25 Sup. Ct. 676 (1905). Statutes providing that water appro- priated for purposes of sale, rental or dis- tribution should be public use, are valid. San Joaquin & Kings River Canal & Trr. Co. v. Stanislaus Co., 155 Cal. 21, 99 Pac. 365 (1908— Stats. 1885, p. 95); Crawford Co. v. Hathaway, 67 Neb. 325, 93 N. W. 781, sub nom. Crawford Co. v. Hall, 60 L. R. A. 889 (1903— Laws 1893, p. 244) ; McCook Irr. & W. P. Co. v. Crews, 70 Neb. 115, 102 N. W. 249 (1905). See San Diego Land & T. Co. v. National City, 174 U. S. 739, 43 L. Ed. 1154, 19 Sup. Ct. 804 (1899). An irrigation district or an irrigation company is an agent of the state in the administration of the public use of water (Crescent Canal Co. v. Montgomery, 143 Cal. 248, 76 Pac. 1032, 65 L. R. A. 940— 1904), and its officers are public officers or agents. See post I, H, 3, this note. Appropriation of water to arid, or semi-arid lands is a public use which carries with it the power of eminent domain. See post I, I, this note. H. Public Municipal Corporations. 1. Generally. The ultimate purpose of the Irrigation Act is the improvement by irrigation of landa within the district. A district can, under the law, be organized and exist and acquire land for that purpose only. Jenison v. Redfield, 149 Cal. 500, 77 Pac. 62 (1906). In an early Washington case it was said that irrigation districts are not municipal corporations (Middle Kittitas Irr. Dist. v. Peterson, 4 Wash. 147, 29 Pac. 995 — 1892), and the same has been held regarding ditch corporation formed under the Colorado Statute. Belnap Sav. Bank v. La Mar L. & C. Co., 28 Colo. 326, 339, 64 Pac. 212 (1901). But it is now generally held that irrigation districts, when organized under and in pursuance of the statute indicated by the legislature for the purpose of promoting the public welfare have all the elements of corpora- tions formed to accomplish a public use or purpose, and are quasi public muni- cipal corporations, as regards their func- tions, in the sense that the purposes for which they are organized are for the public benefit. United States. — Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896) ; Tulare Irr. Dist. v. Shepard, 185 U. S. 1, 13, 46 L. Ed. 773, 22 Sup. Ct. 531 (1902) ; Stanislaus Co. v. San Joaquin & Kings River Canal & Irr. Co., 192 U. S. 201, 202, 48 L. Ed. 406, 24 Sup. Ct. 241 (1904) ; Herring v. Modesto Irr. Dist., 95 Fed. Rep. 705 (1899). California. — Turlock Irr. Dist. v. Wil- liams, 76 Cal. 360, 18 Pac. 379 (1888) ; 1909] Oregon Shokt Line E. Co. v. Pioneer Irrigation Dist. 15 be benefited by irrigation by said system. The board of county commis- sioners was thus designated as the tribunal empowered to determine the question whether the lands included within the district would be benefited by the system proposed; and an opportunity was thus pre- sented to the railway company to appear at such hearing and contest the question of benefits to the lands owned by the company within the district. The railway company did not appear at this hearing or make any objection to including within the district its right of way and station grounds; and not having appeared at the hearing provided by the stat- ute for determining the question of benefits, the company is concluded by the judgment thus entered, in a collateral attack, and could only review such judgment in the method pointed out by the statute. Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 ; Board of Directors Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 Pac. 825 (18S9); Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (1890) ; In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755(1891); People v. Trunbull, 93 Cal. 630, 29 Pac. 224 (1892) ; People v. Selma Irr. Dist., 98 Cal. 206, 32 Pac. 1047 (1893) ; Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894); Borhmer v. Big Rock Irr. Dist., 117 Cal. 19, 48 Pac. 908 (1897); Merchants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937 (1904). See, also, Hagar v. Supervisors of Yolo County, 47 Cal. 222 (1874); Dean v. Davis, 51 Cal. 406 (1876); People v. Williams, 56 Cal. 647 (1880); People v. La Rue, 67 Cal. 526, 8 Pac. 84 (1885) ; Reclamation Dist. v. Hagar, 66 Cal. 54, 4 Pac. 945 (1884). Nebraska. — Board of Directors of Al- falfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 10S6 (1895 — Is a public rather than a municipal corporation) ; Lincoln & Dawson County Irr. Dist. v. McNeal, 60 Neb. 621, 83 N. W. 847 (1900). New Mexico. — Candelaria v. Vallejos, 13 N. M. 146, 81 Pac. 589 (1905— In- voluntary quasi public corporations). The whole object of the legislation au- thorizing the organization of irrigation districts is to enable the owners of land susceptible of irrigation from a com- mon source and by the same system of works, to form a district composed of such lands, which district when formed is a public corporation for the sole pur- pose of obtaining and distributing such water as may be necessary for the irri- gation of the lands within the district, thus giving each owner for his lands within the district the benefit of the common system of irrigation, and bring- ing about the reclamation of the land of the district from aridity to a condition suitable for cultivation. Jenison v. Red- field, 149 Cal. 500, 87 Pac. 62 (1906). While an irrigation district is a pub- lie municipal corporation as regards the function to be performed, it is not a municipal corporation to the extent that the state can dispose of its property as it pleases; but it is to be classed as a pri- vate corporation as regards the private right of the individual landowners with- in the district. Merchants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937 (1904). The legal title to all of the lands of the district is held in trust by the district and is dedicated and set apart to the uses and purposes speci- fied in the act. The beneficial title is in the owners of the land within the irriga- tion district. Tulare Irr. Dist. v. Collins, 154 Cal. 440, 442, 97 Pac. 1124 (1908). See Merchants' Nat. Bk. v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937 (1904). 16 Water and Mineral Cases. [Idaho v. Tregea, 88 Cal. 334, 26 Pac. 237; Fallbrook Irr. Dist. v. Bradley, 164 [J S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. In the case of Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81, this court had under consideration the question as to whether an irrigation district had jurisdiction to assess benefits to lands where the owner of such land was also the owner of a water right sufficient to irri- gate said lands and adequate in every particular to satisfy the demands of such owner, in which opinion this court said : "The board of directors of the district had authority to determine whether or not plaintiff's land would be benefited by the organization of the district and the purchase of the irrigation system, and the only way appellant can call in question the action of the board as to the assessments made is the method pro- vided by statute." The statement thus made in this opinion was in- The trust being expressly limited in its terms, dedicating and devoting all lands owned by the district to the purposes ot irrigation, there is no power in the trus- tees, as the law now stands, even to sell lands which by reason of a change in its plans have become unnecessary to the irrigation scheme. Tulare Irr. Dist. v. Collins, 154 Cal. 440, 442, 97 Pac. 1124 (1908). See San Francisco v. Itsell, 80 Cal. 57, 22 Pac. 74 (1889). The Wright Act (Stats. 1887, p. 29) and the Bridgeford Act, amendatory thereof (Stats. 1897, p. 2G3) do not contemplate, or at least do not provide for, a situation where an irrigation dis- trict owns lands, which lands because of change in its plans have become unnec- essary to the irrigation scheme. Tulare Irr. Dist. v. Collins, 154 Cal. 440, 442, 97 Pac. 1124 (1908). 2. Property Exempt from Execution. Lands which by reason of change of plans have became unnecessary for the purposes of the irrigation district, in the absence in the statute of any pro- vision for their disposition, remain im- pressed with the strict trust, the same as other lands in the district, and equally subject to assessment, and are exempt from execution, levy and sale. Tulare Irr. Dist. v. Collins, 154 Cal. 440, 442, 97 Pac. 1124 (1908). See San Francisco v. Le Roy, 138 U. S. 656, 34 L. Ed. 1097, 11 Sup. Ct. 364 ( 1891 ) ; Hart v. Burnett, 15 Cal. 530 (1860) ; Seale v. Doone, 17 Cal. 476, 484 (1861) ; Fulton v. Hanlow, 20 Cal 450, 480 (1862); Carlton v. Townsend, 28 Cal. 219 (1865); San Francisco v. Cannavan, 42 Cal. 541 (1872) ; Ames v. City of San Diego, 101 Cal. 390, 35 Pac. 1005 (1894). The principle that the property of a quasi public corporation which is not necessary and employed in the exercise of the quasi public functions assumed, may be become subject to execution, does not apply to lands held by a public cor- poration, as an irrigation district, which lands are held under an express trust, when neither a sale of the land by the district nor any execution sale could be made without doing direct violation to the terms of the trust. The situation is identical with that of Pueblo lands. Tulare Irr. Dist. v. Collins, 154 Cal. 440,. 443, 97 Pac. 1124 (1908). The rule exempting property of quasi public corporations from execution, goes no further than to relieve from process such property as is necessary to the exercise of the quasi public functions which the corporation has assumed, and where such corporation abandons a por- tion of its franchise, so much of the property as was used in connection with the abandoned franchise may become sub- ject to execution. Tulare Irr. Dist. v. 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 17 tended to refer to the action of the county commissioners in organizing the irrigation district, and not to the action of the board of directors, as under the statute the board of county commissioners are given power and jurisdiction to determine the question whether lands to be taken into a proposed irrigation district will be benefited or not. This question is determined when the district is organized. In this connection we may observe that the case of Knowles v. The New Sweden Irr. Dist. was governed by the provisions of the act of March 6, 1899; while the case under consideration is governed by the provisions of the amendatory act of March 18, 1901. Under the former act the assessment of benefits was not made prior to the hearing before the district court on confirma- tion of the proceedings of the organization of the district; while under the latter act, the assessment of benefits is made prior to the hearing Collins, 154 Cal. 440, 443, 97 Pac. 1124 (1908) . See Ames v. San Diego, 101 Cal. 390, 35 Pac. 1005 (1894); San Diego v. Linda Vista Irr. Dist., 108 Cal. 189, 41 Pac. 291 (1895); Witter v. Missions School Dist., 121 Cal. 350, 53 Pac. 905, 66 Am. St. Rep. 33 (1898) ; City Street Imp. Co., v. Regents of University of Cal., 153 Cal. 776, 96 Pac. 801 (1908). The remissness of the directors in the discharge of their duty in failing to pay a judgment against the district un- der which the execution is issued, will not estop the district from insisting that its property is held under a public trust that shall be protected from illegal seiz- ure and sale, to the end that this public trust may not be violated. Tulare Irr. Dist. v. Collins, 154 Cal. 440, 443, 97 Pac. 1124 (1908). 3. Officers of Are Public Officers. Where an irrigation district is organ- ized in pursuance of the laws providing for the organization of such districts its officers are public agents or officers of the state. United States. — Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896). California. — People v. Selma Irr. Dist. 98 Cal. 206, 208, 32 Pac. 1047 (1893); Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894) ; Perry v. Oray Irr. Dist., 127 Cal. 565, 60 Pac. 40 (1900). W. & M— 2 Nebraska. — Board of Directors of Al- falfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 1086 (1895). 4. Powers of District. As to the powers of an irrigation dis- trict and of the officers thereof, see post V, A and B, 2; VIII, A, this note. I. Right of Eminent Domain. 1. Generally. The application of water to arid and semi-arid lands being for the public wel- fare, is a public use (See I, G, this note) and irrigation districts being quasi public municipal corporations (See I, H, 1, this note) they have the right to exercise the power of eminent domain for the purpose of acquiring property to enable them to perfect and carry out the objects of their formation ; and provis- ions necessary for the condemnation of lands and other property required for their purposes are usually incorporated in the statutes authorizing their forma- tion. United States. — Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896); San Diego L. & T. Co. v. National City, 174 U. S. 739, 43 L. Ed. 1154, 19 Sup. Ct. 804 (1899); Clark v. Nash, 198 U. S. 361, 49 L. Ed. 1085, 25 Sup. Ct. 676 (1905). 18 Watek and Minekal Cases. [Idaho before the district court on confirmation, and by provisions of the statute is directly involved in such hearing. After a re-examination of this question upon the argument in this case, we are fully satisfied that the conclusion of the court in the Knowles Case was correct, and that the owner of land within a proposed irriga- tion district cannot quietly sit by, fail to appear or file objections against the organization of an irrigation district and the inclusion of his lands therein, and afterwards, in a collateral attack, deny the jurisdiction of the district to assess such lands, upon the ground that such lands will not be benefited by the system of irrigation works proposed for such district. It no doubt was the intention of the legislature, in enacting the district irrigation law, that the boundaries of the district should be so adjusted as to include within the district only such lands as could be Arizona. — Oury v. Goodwin, 3 Ariz. 255, 26 Pac. 376 (1891). California.— Kelly v. Natoma Water Co., 6 Cal. 105 (1S55); Davis v. Gale, 32 Cal. 26, 91 Am. Dec. 554 (1867) ; Lux v. Hagin, 69 Cal. 304, 10 Pac. 674 (1S86); Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379 (1888). fol- lowing Gilmer v. Limepoint, 18 Cal. 229, 552 (1S01) ; In re Madera Irr. Dist., 92 Cal. 296, 309, 28 Pac. 272, 675, 27 Am. St. Pep. 106, 14 L. R. A. 755 (1891); Aliso Water Co. v. Baker, 95 Cal. 268, 30 Pac. 537 (1892); Lindsay Irr. Co. v. Mehrtens, 97 Cal. 676, 32 Pac. 802 (1893) ; Eialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pac. 484 (1894) ; Emigrant Ditch Co. v. Webber, 108 Cal. 88, 40 Pac. 1061 (1895) ; Laguna Drainage Dist. v. Charles Martin Co., 144 Cal. 209, 77 Pac. 933 (1904); San Joaquin & Kings River C. & Irr. Co. v. Stanislaus County, 155 Cal. 21, 99 Pac. 365 (1908). Colorado. — Yunker v. Nichols, 1 Colo. 551 (1872); Schilling v. Rominger, 4 Colo. 100 (1878); Coffing v. Left Hand Ditch Co., 6 Colo. 443 (1882) ; Tripp v. Overrocker, 7 Colo. 72, 1 Pac. 695 (1S83); Golden Canal Co. v. Bright, 8 Colo. 144, 6 Pac. 142 (1885); Downing v. More, 12 Colo. 316, 20 Pac. 766 (1889) ; Saint v. Guerrerio, 17 Colo. 448, 30 Pac. 335, 31 Am. St. Rep. 320 (1892); San Luis Land C. & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 Pac. 860 (1893). Idaho. — Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909) ; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). Montana. — Ellinghouse v. Taylor, 19 Mont. 402, 48 Pac. 757 (1S97). Nebraska. — Paxton & Hersey Irr. C. & L. Co. v. Farmers' & Merchants' Irr. & L. Co., 45 Neb. 884, 64 N. W. 343, 50 Am. St. Rep. 585, 29 L. R. A. 853 (1895); Board of Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 1086 (1895). Oregon. — Umatilla Irr. Co. v. Barnhart, 22 Or. 389, 30 Pac. 37 (1S92). Texas. — Maghee Irr. Ditch Co. v. Hud- son, 85 Tex. 587, 22 S. W. 39S (1893). Utah.— Nash v. Clark, 27 Utah 158, 75 Pac. 371, 101 Am. St. Rep. 953, 1 L. R. A. (N. S.) 208 (1904), affirmed 198 U. S. 361, 49 L. Ed. 1085, 25 Sup. Ct. 676 (1905). Washington. — Lewis County v. Gordon, 20 Wash. 80, 54 Pac. 779 (1898— Dun- bar, J., dissenting); Prescott. Irr. Co. v. Flathers, 20 Wash. 454, 55 Pac. 635 (1899). The use to which water and other property taken is to be put, being to satisfy a great public want or public exigency, makes it a public use within the meaning of the Constitution, and 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 19 irrigated from the system proposed, and would be more or less benefited by the construction or purchase of such system; but in fixing the boundaries of the district the statute does not limit the land, to be in- cluded therein, to lands which are being used for any particular purpose or to lands which require water for irrigation at the particular time the d ; strict is organized. The mere fact that the railroad company for the time being is using its lands for right of way and depot purposes is not a reason why such lands will not be benefited by a system of irrigation works controlled by the district or a reason why such lands should not be included within the boundaries of such district- The question whether lands proposed to be incorporated within an irrigation district will be beneficed has reference to the land in its natural state, and not to the use to which the land is being put at the time the the state is not limited to any given mode of applying that property to satis- fy the want or meet the exigency. Tur- lock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 378 (1888), following Gilmer v. Limepoint, 18 Cal. 229, 252 (1861). The language of section 12 of the Wright Act, authorizing the board of directors of an irrigation district to acquire property for the benefit of the district, is broad enough to include pipe lines, flumes or other conduits usually employed in works of irrigation, for con- veying water, even if not necessarily in- cluded in the term "ditches and canals." Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pac. 484 (1894). 2. Right of Way over Private Land. An irrigation district is not required to resort to condemnation proceedings under the power of eminent domain, where it can contract satisfactorily with the owner for right of way ; and is em- powered to make contract for right of way, in consideration of which the owner is to have the privilege of pur- chasing water from the district for the purpose of irrigation; and where under such contract, water is supplied to the landowner for a term, but is afterwards withdrawn for the purpose of supplying it to others, mandamus will lie to com- pel the company to continue to supply water according to the contract. Mer- rill v. Southside Irr. Co., 112 Cal. 426, 44 Pac. 720 (1896). See post VIII, B, 2, this note. 3 Right of Way over Public Land. Where a right of way for an irriga- tion ditch, pipe line, etc., has not been ac- quired over public lands of the United States prior to their entry as a home- stead, they cannot be subsequently ac- quired except by arrangement with the entryman or by taking proper proceed- ings to appropriate the land for that purpose (Rasmussen v. Blust, 82 Neb. 678, 120 N. W. 184—1908) ; and where an irrigation canal has been constructed through the public lands of the United States without securing the consent of the general government or taking a right of way by deed from the homestead entry- man, and the entryman afterwards abandons the entry and allows it to re- vert to the general government, the irri- gation district or proprietor of the canal will have no claim to the land over which it runs as against a subsequent entry- man (Rasmussen v. Blust, 82 Neb. 678, 120 N. W. 184—1908) ; and the mere approval of a map and plans of a canal or ditch and reservoir subject to all ex- isting vested rights, will not give a right as against a subsequent entryman who enters upon and occupies the lands under the pre-emption laws. Baldridge v. Leon 20 Water and Mineral Cases. [Idaho district is organized. We think this construction clearly appears from the language of the statute. In the very nature of things, an irrigation district must cover an extensive area of land, and if only land requiring the application of water, because of the use being made of it at the time the district is organized, can be included within the boundaries of the district, then it might be impossible to create such district out of con- tiguous territory; and the commissioners would be required to exclude from the boundaries of such district tracts of land which, although the same did not require water at the particular time of the organization of such district, yet upon the happening of some event would be placed in the same condition as other lands requiring water at the time of the organization of such district; and the boundaries of the district would necessarily include therein much land of irregular descriptions which Lake D. & R. Co. (Colo. App.), 80 Pac. 477 (1905). 4. Complaint in Condemnation. The procedure for condemnation, under power of eminent domain, of lands, etc., by an irrigation district for its uses, does not differ in the essential particu- lars from proceedings to condemn by any other public municipal corporation. The complaint or petition must state facts showing that the purpose for which the property is sought to be taken is a pub- lic use. Miocene Ditch Co. v. Lyng, 138 Fed. 544, 70 C. C. A. 458 (1905). See London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281, 512 (1890); McCulley v. Cunningham, 96 Ala. 583, 11 So. 694 (1893); Evergreen Cemetery Assoc, v. Beecher, 53 Conn. 551, 5 Atl. 353 (1886) ; Farneman v. Mt. Pleasant Ceme- tery Assoc, 135 Ind. 344, 35 N. E. 271 (1893) ; Great Western N. G. & O. Co. v. Hawkins, 30 Ind. App. 557, 66 N. E. 765 (1903); New Orleans Terminal Co. v. Teller, 113 La. Ann. 733, 37 So. 624 (1904); In re New York Cent. & II. River R Co., 5 Hun (N. Y.) 86 (1875) ; Valley R. Co. v. Bohin, 34 Ohio St. 114 (1877); Shick v. Pennsylvania R. Co., 1 Pears. (Pa.) 259 (1866); Wisconsin Water Co. v. Winans, 85 Wis. 26, 54 N. W. 103, 39 Am. St. Rep. 813, 20 L. R. A. 662 (1893); Compare Chicago & A. R. Co. v. City of Pontiac, 169 111. 155, 48 N. E, 485 (1897). It is necessary in order to give the court jurisdiction that the complaint or petition should directly state that the taking of the land, etc., is necessary to such public use. See Sanford v. City of Tucson, 8 Ariz. 247, 71 Pac. 903 (1903) ; Contra Costa C. M. R. Co. v. Moss, 23 Cal. 323 (1863); Bennett v. City of Marion, 106 Iowa 628, 76 N. W. 844 (1898); Grand Rapids N. & L. S. R. Co. v. Van Driele, 24 Mich. 409 (1872) ; Flint & P. M. L. Co. v. Detroit & B. C. R. Co., 64 Mich. 350, 31 N. W. 281 (1S87 — "required" equal to the statutory "necessary") ; City of Helena v. Harvey, 6 Mont. 114, 9 Pac. 903 (1886); In re Meagher, 35 Misc. (N. Y.) 601, 72 N. Y. Supp. 157 (1901); In re Union El. R. Co., 55 Hun (N. Y.) 611, 8 N. Y. Supp. 813 (1890); City of Dallas v. Hallock, 44 Or. 246, 75 Pac. 204 (1904) ; Fork Ridge Baptist Cemetery Assoc, v. Redd, 33 W. Va. 262, 10 S. E. 405 (1889). A complaint in such an action showing the land is sought for the purpose of establishing and maintaining a ditch or pipe line or lines across the land sought to be condemned, which ditch and pipe lines are to be used in connection with an irrigating system, shows a pub- lic use (Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pac. 484—1894), because in 1909] Oregon Shokt Line R. Co. v. Pioneer Irrigation Dist. 21 would be excepted from the operation of the district irrigation law. We do not believe that this was intended by the statute, but, on the con- trary, that the board of commissioners are authorized and empowered to incorporate within a proposed irrigation district such lands as in their natural state would be benefited from the system of works proposed. We are satisfied that by the enactment of the irrigation law under con- sideration the legislature intended to confer jurisdiction and power upon the board of county commissioners to include within the boundaries of an irrigation district all lands which in their natural state would be benefited by irrigation and are susceptible of irrigation by one system, regardless of the use to which any particular tract of land may be put at the time the district is organized; and although such use may be of such a character as to render such land unfit for cultivation, and make it unnecessary to apply water to such land to aid in the use to which the same is put. such a proceedings the court will pre- sume that, in the building of such a ditch or pipe line, the irrigation district or water company is acting for the purpose of serving the public. See Central Georgia R. Co. v. Union Springs & N. R. Co., 144 Ala. 639, 39 So. 473, 2L.R. A. (N. S.) 144 (1900). 5. Condemning Specific Piece of Property — Determination. It is not necessary in order to author- ize an irrigation district to exercise the power of eminent domain that it should allege in its complaint or petition, or show on the hearing, that there is absolutely no other way than the one designated in the complaint by which water could be brought on its lands (Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pac. 484—1894) ; because the question whether or not the district could construct its ditches or pipe lines on other property, so that there is no real necessity to acquire an easement on the designated property, is not open to investigation or determination. See St. Louis & S. F. R. Co. v. Southwestern T. & T. Co., 121 Fed. 276, 58 C. C. A. 198 (1903). But when the necessity of taking a specific piece of property for the use of the district is contested, it should be determined by the court in limine before appointing the com- missioners to assess the damage that will be sustained by reason of the taking. Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909). See Hubbard v. Great Falls Mfg. Co., 80 Me. 39, 12 Atl. 878 (1888) ; St. Joseph Term- inal R. Co. v. Hannibal & St. J. R. Co., 94 Mo. 535, 6 S. W. 691 (1887) ; Emerson v. Eldorado Ditch Co., 18 Mont 247, 44 Pac. 969 (1896); In re City of New York, 22 App. Div. (N. Y.) 124, 47 N. Y. Supp. 965 (1897). As to necessary al- legations in complaint or petition seek- ing condemnation of water or other property already appropriated to a public use, see post I, 1, 6, this note. 6. Condemnation of Appropriated Waters, etc. The complaint or petition of an irriga- tion company seeking to condemn, water, etc., already appropriated to^ a public use, must allege such facts as will show that the use for which the condemnation is sought is more necessary than the public use to which the property is at present applied, the question of the relative importance of the two uses being one for judicial determination (City of St. Helena v. Rogan, 26 Mont. 452, 68 22 Watee and Mineral Cases. [Idaho It seems reasonable, and we believe we are justified in concluding, that although water may not be applied to a beneficial use upon a particular tract of land in an irrigation district, yet if a system of irrigation is pro- vided by the district from which the lands of such district are irrigated and thereby benefited, it necessarily benefits all lands of the district, whether any particular tract may require or use thereon the water pro- vided by such system. If this be true, then it would follow that although the right of way and station grounds of the railway company were not in a condition to have water applied to such lands in the use made of them at the time the district was organized, yet such lands would neces- sarily be benefited by reason of the fact that the application and use of the water from such system to other lands adjacent and surrounding the lands of the railroad company benefited such lands. The question Pac. 798, 27 Mont. 135, 69 Pac. 709— 1902) ; and the necessity will not be measured by the extent to which the use is actually applied, but rather to the public nature and character of the use to which it has been previously- applied. Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909). And where an irrigation district con- demns a water right purchased by a landowner from a canal company, it does not thereby interfere with or interrupt the dedication already effected under the provisions of the Idaho Constitution (§ 4, art. XV) : but the landowner will be required to pay such charges as may be established in conformity with law, for the use of the water. Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). The necessity for the taking being shown, one irrigation canal company may condemn a part of the right of way of another irrigation canal company for the purpose of enlarging the old canal to sufficient capacity to carry such an additional volume of water as the needs of the latter company may require (Portneuf Irr. Co. Limited v. Pudge, 16 Idaho 116, 100 Pac. 1046—1909); and all that the subjected irrigation company is entitled to urnler the act is that its property shall not be taken for public use without just compensation, — a fair return on the reasonable value of its property at the time it is being used for a public benefit. San Joaquin P ac - 7&5> 75 P ac - 646; Best v. Wohlford, 144 Cal. 733, 78 Pac. 293. In the case of Co-operative, etc., Ass'n v. Green, 5 Idaho 660, 51 Pac. 770, in discussing the ques- tion of taxation, this court said: "Substantial compliance with the re- quirements of the law in making assessment is all that is necessary. If 408 ) . Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046. (1909). (2) Assessing Tracts and Listing. The Idaho Law requiring the assess- ment of benefits (Laws 1899, p. 411, § 11, as amended by Laws 1901, p. 194, § 2) requires the board to examine all tracts and legal subdivisions within the boundaries of the district, and apportion the benefits according to their judgment; but it does not require the board, in designating these benefits, to particularly and specifically describe each tract or fractional part of such legal subdivision according to the separate ownership thereof, in those cases where the benefits accruing to all parts of such legal subdivision are the same; and if it fails to list the lands according to sepa- rate ownership, but lists them according to each legal subdivision, this does not Bhow that the board did not intend to assess benefits to all the lands within the legal subdivision. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). In those cases, however, where the board in assess- ing benefits determines that any part or tract less than a legal subdivision will be benefited differently from the remainder or other part of the tract, then the board is required to designate and describe the benefits of such particu- lar tract or fractional part. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). (3) Railway Right of Way, Stations, etc. In assessing benefits to accrue to lands within a proposed irrigation dis- trict, the question whether or not the right of way and station grounds of a railroad company will be benefited is committed to the judgment of the board of county commissioners, and when this board has determined that such lands will be benefited and includes such right of way, station grounds, etc., within the district, the action of the board is final and conclusive against collateral attack. The mere fact that at the time the lands are being used for right of way and depot purposes is not a reason why such land will not be benefited by a system of irrigation works controlled by the irrigation district; the question of benefit is to be determined with reference to the natural state and condition of the land and not with reference to the use to which the land is put. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). Where the board of county commission- ers in preparing a list of the lands against which benefits are laid, desig- nates upon such list the legal subdi- visions across which the right of way of 1909] Oeegon Short Line E. Co. v. Pioneer Irrigation Dist. 39 property is a subject of taxation, it cannot escape through some tech- nical failure of the officer to perform his duty, unless it has actually misled the party, to his injury." So, in the case under consideration, the board having determined that all the land within the district was benefited, and such benefit was deter- mined to be $6 an acre, and the same was laid against each legal subdi- vision within the district across and within which the company's property was located, the company should not be allowed to escape the burden of taxation upon the sole ground that, in making a list of the several tracts of land within the district, the officers of said district failed to designate thereon the particular and accurate description of the com- pany's right of way and depot grounds. It will also be perceived that the owner of each legal subdivision within the district is designated, a railroad company passes, and designates the rate per acre apportioned to each legal subdivision, this is a substantial compliance with the statute, and is not void because the right of way is not particularly and separately described, and the list thus prepared is notice to the railroad company of the ber.efitc assessed against each legal subdivision of which its right of way is a part, and the absence of objection on the part of the company on account of a defective description or want of description at the time of hearing and confirmation of the district, the railroad is concluded from a collateral attack upon the action of the commissioners. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). (4) Constitutionality of Statute. The fact that the Idaho Statute makes no provision for notice to the landown- ers that on a particular day an assess- ment of benefits to the lands within the district will be made, does not render it unconstitutional, provision being made in the statute for notice to be given of the proceedings to organize such district and notice of the hearing for the con- firmation of the organization and pro- ceedings of such district, at which hear- ing the court is required to examine all the proceedings involved in the organ- ization of a district including the assess- ment of benefits. Oregon Short Line R. Co. v. Pioneer Dist., 16 Idaho 578, 102 Pac. 904 (1909). d. Public Lands. The fact that public lands which have been granted to a railroad company, but not yet deeded to it, and which have been sold by the railroad company to bona fide purchasers who are citizens of the United States, before the organ- ization of the district, does not make the organization invalid. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891); In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891); Cullen v. Glendora Water Co., 113 Cal. 503, 513, 45 Pac. 822, 1047 (1896). Set 39 Pac. 769 (1895). e. City or Town. In the organization of an irrigation district all lands which in their natural state would be benefited by irrigation, and are susceptible of irrigation by one system are to be included within the district regardless of the question as to what particular use is being made of any particular tract or piece of land at the time the district is organized. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). Hence it has been held that a city or town may rightfully be included within an 40 Water and Mineral Cases. [Idaho although the owners of fractional parts thereof are not designated. So the list designates the legal subdivisions across and within which the company's right of way and station grounds are located. The fact that the list designates the assessment of benefits to the particular legal sub- division is, in our judgment, a substantial compliance with the law; and the fact that the list fails to contain the name of the true owner of such legal subdivision or fractional part thereof does not render void the action of the board in fixing and determining the question of benefits. To permit the railroad company to escape its share of the burdens imposed upon said district by such improvement, because the officers in making up the list of lands and fixing the benefits failed to specifically and accurately describe the company's right of way and station grounds and designate the railway company as the owner thereof, would be to exact from the officials of such district a strictness in official acts which, in our irrigation district in those cases where it is determined hy the board that the lands comprising a city or town will be benefited by irrigation, and that such inclusion will not invalidate the organ- ization of the irrigation district. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891); In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). Nam pa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). And this is true regardless of the fact that buildings or other structures have been erected upon small lots, thereby render- ing them unfit for cultivation. Modesto Irr. Co. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). f. Waiver of Right. Under the Idaho Irrigation District Law (Laws 1903, p. 150) a landowner within the proposed district may, with- out the consent of the district, waive hi3 right to water from such district in those cases where it is made to appear that no one residing within the district is injured or prejudiced thereby, and in such a case no part of the bond issue can be apportioned to his land. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). See Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909). 3. Exclusion. a. Generally. The California Wright Act provides that the board of county supervisors shall exclude from the district any lands which will not, in the opinion of the board, be benefited by the system of irrigation to be established ; and where lands are included within the district after an opportunity for the owners thereof to be heard, this is in and of itself a determination that the lands will be benefited. Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896). The matter of the exclusion of land rests entirely in the discretion of the board of supervisors, and is a matter which cannot be then delegated to anoth- er. Thus, where the board of county com- missioners referred requests for the ex- clusion of land to a committee of the peti- tioners who had in charge the organiza- tion of the district, and thereafter affirm- ed the determination of such committee without investigation, this was held to be an abuse of the power conferred upon the board of county commissioners by Colo- rado Laws 1901, p. 199, § 2. Ahem v. Board of Directors of High Line Irr. Dist., 39 Colo. 409, 89 Pac. 963 (1907). In Idaho and Nebraska special pro- visions are made and proceedings pre- 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 41 judgment, was not intended by the statute. In the case of Pioneer Irr. Dist. v. Bradbury, 8 Idaho 310, 68 Pac. 295, 101 Am. St. Rep. 201, this court held: "But the amendatory act clearly provides for assessments to be made according to the benefits accruing to each tract of land in such district, and the action of the board in preparing lists of all real estate in their district, by which the assessments each year shall be made, may be contested in the district court, on the ground that such lists are not made with reference to the benefits accruing to each tract of land." If, then, the railway company was dissatisfied with the assessment of benefits or the list made, it should have appeared and contested the same in the district court, and having failed to do so is concluded by the judgment of the district court. Counsel for respondent however con- tend that this court erred in the case of Pioneer Irr. Dist- v. Bradbury scribed for the exclusion of lands which are already under a ditch carrying sufficient water for irrigation or which are by their nature nonirrigable. See post II, C, 3, c and d. b. After Organization. After the organization of an irriga- tion district, the exclusion of part of the lands therefrom does not destroy its identity as an irrigation district; and where at the time of the exclusion the district has no indebtedness, and no in- terested party objects, there is no basis for a claim of injury or of the violation of any constitutional rights. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). The Nebraska Statute, providing that in no case shall lands be held within any irrigation district which from some nat- ural cause cannot be irrigated, provides the procedure for detaching such lands from the district after organization, and also provides the method of detaching lands other than those which cannot from some natural cause be irrigated, and the procedure therein prescribed is exclusive. Andrews v. Lillian Irr. Dist., 66 Neb. 461, 97 N. W. 336 (1893) ; Sow- erwine v. Central Irr. Dist. (Neb., Dec. 23, 1909), 124 N. W. 118. c. Land Already under Ditch. By provisions of the Idaho and Ne- braska Irrigation District Laws, the owner of lands already having ditches of sufficient capacity to water said lands, having water and not receiving any benefits from the organization of the district, upon proper showing being made, is entitled to have his lands ex- cluded from the district and from all liability or responsibility for assessments of the district as well as from the bene- fits and protection of the landowners in such districts. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905); Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 1Q0 Pac. 1046 (1909); State v. Several Parcels of Land, 80 Neb. 424, 114 N. W. 283 (1907). d. Nonirrigable Lands. Under the provisions of all the irriga- tion district laws, nonirrigable lands, or lands which from their nature are not susceptible of receiving and using water from the irrigation system to be estab- lished, are to be excluded from the dis- trict, and the method of procedure for such exclusion is provided for. Under the Nebraska Law (Const. Stats. 1903, c. 93a) a petition for the exclusion of lands from an irrigation district alleg- ing the fact to be that the lands are low, wet, and swampy, totally unfit for irrigation, and require drainage of the water naturally standing thereon before the same can be tilled, is equivalent to 42 Watee and Mineral Cases. [Idaho in holding any one owning land in such district may appear and show that the cost of irrigation works of such district has not been apportioned or distributed in proportion to the benefits accruing to any tract of land in said district, for the reason that at the final hearing the court is only authorized to approve or disapprove the proceedings either in whole or in part, but that no jurisdiction is given to revise the proceedings or to correct any errors that may be found therein; and that no provision is made for further proceedings in case the court disapproves any pro- ceeding already had. Section 16 of the irrigation act (Laws 1899, p. 417) authorizes the board of directors of the irrigation district to file in the district court a petition, praying in effect that the proceedings aforesaid may be examined, approved, and confirmed by the court. Section 17 requires the court to fix a time for the hearing and for notice thereof. an allegation that such lands cannot from natural cause be irrigated. An- drews v. Lillian Irr. Dist., 66 Neb. 461, 97 N. W. 336 (1893). It is held, how- ever, that equity will not interpose to separate nonirrigable lands from an ir- rigation district unless it be shown that the plaintiff has sought to avail him- self of the procedure established by the Irrigation District Law, providing for effecting such separation. Andrews v. Lillian Irr. Dist., 66 Neb. 461, 97 N. W. 336 (1893). D. Watering Lands Outside of District An irrigation company or district can- not be compelled to furnish water to put upon lands outside of the irrigation dis- trict; and where a company or district does consent to furnish surplus water for the purpose of watering lands outside of the district, no indefeasible right ex- ists to the use of such water, if thereby secured, and the district or company may discontinue the service whenever the needs of landowners within the dis- trict require the water. See post VIII, B, 2, this note. The fact that an irrigation district does furnish water for use on lands out- side of the district will not affect either the validity of the organization of the district (Settlers' Irr. Dist. v. Settlers' Canal Co., 14 Idaho 504, 94 Pac. 829— 1908), or the validity of a bond issue of the district. See post VI, P, this note. E. Costs and Expenses. The Irrigation Law of California, known as the Wright Act, is evidently framed upon the theory and with the intention on the part of the legislature that the affairs of the district shall be conducted upon a ready-money basis, and not upon credit. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). The board of directors are empowered to levy an assessment to create a fund out of which to pay current and incidental expenses, including the salaries of offi- cers. See post VII, G, this note. Under section 24 of the Nebraska Ir- rigation Act (Sess. Laws 1895, c. 70) all expenses incurred for the construc- tion of the irrigation works are to be paid wholly out of the construction fund, and no indebtedness or liability against the district for labor performed in the work of construction can be incurred by the board of directors where no con- struction fund has been created out of which such indebtedness may be paid. Lincoln & Dawson County Irr. Dist. v. McNeal, 60 Neb. 621, 83 N. W. 847 (1900). Under the Oregon Irrigation District Law (Laws 1895, p. 19) the cost and expenses of purchasing and acquiring 1909] Oregon Shoet Line E. Co. v. Pioneer Irrigation Dist. 43 Section 18 provides: "Any person interested in said district, or in the issue or sale of said bonds, may demur to or answer said petition." Section 19 provides that: "Upon the hearing of such special proceed- ing, the court shall have power and jurisdiction to examine and deter- mine the legality and validity of, and approve and confirm each and all of the proceedings for the organization of said district under the pro- visions of the said act, from and including the petition for the organiza- tion of the district, and all other proceedings which may affect the legality or validity of said bonds, and the order for the sale, and the sale thereof. The court, in inquiring into the regularity, legality or cor- rectness of said proceedings, must disregard any error, irregularity, or omission which does not affect the substantial rights of the parties to said special proceeding; and it may approve and confirm such proceed- property and constructing the works and improvements are fully provided for. Little Walla Walla Irr. Dist. v. Preston, 46 Or. 5, 78 Pac. 982 (1904). As to payment of salaries of officers and other operating expenses, see post V, F, 1 and 2, this note. Under the Washington Irrigation Dis- trict Laws (Laws 1895, p. 143), war- rants issued by county commissioners for construction of ditches for agricul- tural, sanitary, and domestic purposes are to be paid, in the order of their issue, out of the "ditch fund" raised by special assessment provided for by the Act. State ex rel. Rush v. St. John, 30 Wash. 630, 71 Pac. 192 (1903). Such warrants issued are payable in full in order of issue, regardless of the short- age of funds to pay all, and they draw interest from date of presentation. State ex rel. Rush v. St. John, 30 Wash. 630, 71 Pac. 192 (1903). III. Confirmation Proceedings. A. In General. The proceeding to confirm an irri- gation district is not the same as a pro- ceeding for the organization thereof. People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381 (1904). The California Confirmation Act of March 16, 1889, is separate and distinct from the irrigation district law known as the Wright Act (see I, E, 2, this note), and provides for the examination, approval, and confirmation of the pro- ceedings for the organization of the dis- trict, and for the issue of bonds and the sale of bonds issued under the Wright Act (Stats. 1889, p. 12). Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (1890); Modesto Irr. Dist, v. Tre- gea, 88 Cal. 334, 26 Pac. 237 (1891), affirmed in 164 U. S. 179, 41 L. Ed. 395, 17 Sup. Ct. 52 (1896); In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 100, 14 L. R. A. 755 (1891); Fallbrook Irr. Dist. v. Abila, 106 Cal. 355, 39 Pac. 794 (1895) ; Cul- len v. Glendora Water Co., 113 Cal. 503, 45 Pac. 822, 1047 (1896), see 39 Pac. 769 (1895) ; In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897). B. Constitutionality. The California Confirmation Act of March 16, 1889, regarding proceedings for confirmation of organization and is- suance of bonds by irrigation districts, empowering the superior court to hear and determine what will be the rights of parties interested in the bonds in ad- vance of any controversy as to such rights, is not unconstitutional because of such power conferred. Cullen v. Glen- dora Water Co., 113 Cal. 503, 512, 45 Pac. 822, 1047 (1896), see 39 Pac. 769 (1895). 44 "Watee and Mineral Cases. [Idaho ings in part, and disapprove and declare illegal or invalid other and subsequent parts of the proceedings." Section n of the act of March 18, 1901, amending the law of 1899, among other things provides: "Provided, that the proceedings of said board of directors in making such apportionment of cost and the said list of apportionment shall be included, with other features of the organi- zation of such district which are subject to judicial examination and confirmation as provided in sections sixteen, seventeen, eighteen, nine- teen and twenty of this act." It will thus be seen that this statute expressly authorizes the court at the hearing for confirmation to examine and determine the legality and validity of and approve and confirm each and all of the proceedings for the organization of said district under the provisions of said act, from and C. Construction. The California Confirmation Act of March 16, 1889, is a separate and in- dependent statute amendatory of the Wright Act, no part of which provided special proceedings in which the aid of the court may be invoked to secure evidence and determine as to the due and regular organization of any irriga- tion district and the regularity of any bond issue by it, and the limitation of two years provided in section 3 of the Wright Act of 1891, in which a suit shall be commenced or defense made attacking the validity of the organiza- tion, does not apply to special proceed- ings instituted by the board under the Act of 1889. In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897). D. Nature of Proceedings. The proceedings for the confirmation of the legality of the organization of an irrigation district and of the issu- ance of bonds and the sale of bonds by the district are proceedings in rem. United States. — Tregea v. Modesto Jrr. Dist., 164 U. S. 179, 41 L. Ed. 395, 17 Sup. Ct. 52 (1896) ; Perris Irr. Dist. v. Thompson, 116 Fed. 832 (1902). California. — Crall v. Poso Irr. Dist., 87 Cal. 140, 20 Pac. 797 (1890); Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891); In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675. 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891) ; Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pac. 484 (1894); Directors Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895); Cullen v. Glendora Water Co., 113 Cal. 503, 45 Pac. 822, 1047 (1896), see 39 Pac. 769 (1895); People v. Linda Vista Irr. Dist., 128 Cal. 477, 481, 61 Pac. 86 (1900); People ex rel. Fogg v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399 (1901) ; People v. Per- ris Irr. Dist., 142 Cal. 601, 67 Pac. 381 (1904). Idaho. — Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909); Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908) ; Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). But the proceeding may be attacked for fraud in procuring the organization or the decree of confirmation. See post III, J, 4, this note. Such proceedings are authorized for the express purpose of fixing the legal status of the corporation and the decree Tendered thereat concludes the whole world upon all the questions involved, Perris Irr. Dist. v. Thompson, 116 Fed. 832 (1902) ; Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (1890) ; Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pac. 484 (1894); Cullen v. Glendora Water 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 45 including the petition for the organization of the district, and all other proceedings which may affect the legality or validity of said bonds and the order for the sale and the sale thereof, including the proceedings of the board of directors in making and apportioning the costs and the list of such apportionment. The list of apportionment of costs thus referred to is the costs required to be apportioned by the board over the tracts and subdivisions of land within the district according to the benefits accruing thereto, as provided in said section. It will thus be seen that the railroad company was given notice of the hearing for con- firmation of the district, given an opportunity to object to the amount of benefits laid against its lands within the district, and given the same opportunity given to every other landowner of such hearing ; thus giving to the railway company its day in court at which the railway company Co., 113 Cal. 503, 45 Pac. 822, 1047 (1896), see 39 Pac. 769 (1895); People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86 (1900) ; People ex rel. Fogg v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399 (1901) ; People v. Perris Irr. Dist., 142 Cal. 601, 67 Pac. 381 (1904); and are res adjudwata as to all issues before the court. Miller v. Perris Irr. Dist., 85 Fed. 693 (1898). See post III, J, 5, this note. E. Directors May Institute. An action for the confirmation of the proceedings in the organization of the district may be brought by the board of directors of the district on proper peti- tion therefor. In re Central Irr. Dist., 117 Cal. 382, 387, 49 Pac. 354 (1897) ; Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). Under the irrigation district laws the determination of the board of county supervisors, or other board to which the petition for the organization of an ir- rigation district is submitted, as to the facts respecting the validity of the or- ganization of the district is not conclu- sive, but their action in this regard is to be reviewed by special proceedings for confirmation. In re Central Irr. Dist., 117 Cal. 382, 387, 49 Pac. 354 (1897). F. Notice of. 1. Generally. The notice of the hearing of the pe- tition for confirmation may be given in the same manner as the notice of the application to the board of supervisors or board of county commissioners for the formation of an irrigation district. See II, B, 6, e, this note. 2. Contents of, Description. The description of the proposed irriga- tion district by boundaries, as required in the notice of proceedings for organization of the district (II, B, 6, d, this note) is not required in the notice for confirma- tion of the organization, or of the issu- ance of bonds; a description by the name of the district is held sufficient, because the law requires the board, on declaring the organization of the dis- trict, to cause a copy of such order, duly certified, to be immediately filed for record in the county in which the land lies, and the record thus made consti- tutes constructive notice of the location and boundary lines of the district to all inhabitants and other interested par- ties. Fogg v. Perris Irr. Dist., 154 Cal. 209, 97 Pao. 316 (1908). All changes in boundaries of the proposed district requiring record, in the same manner as in the fixing of the original bounda- ries, the record furnishes to all parties interested constructive notice of such changes. Fogg v. Perris Irr. Dist., 154 Cal.°209, 97 Pac. 316 (1908). See ante II, B, 2, b, this note. 46 "Water and Mineral Cases. [Idaho was given an opportunity to contest the question as to whether or not the benefits assessed to its property were out of proportion to the bene- fits assessed to other property, as well as the sufficiency of the list thus prepared. The railway company having made no appearance at such hearing or made any objection to the apportionment of benefits of the list made, is concluded by the judgment of the district court confirming said district and said assessment; and the same cannot be called in ques- tion or attacked in this collateral proceeding. Counsel for respondent also argue that it is shown by the pleadings that the officers of the irrigation district were acquainted With the character and extent of the right of way owned by the plaintiff, and that the law also made it their duty to examine each tract or legal subdivision critically, and by so doing they would thus have become acquainted 3. Personal Service of Not Necessary. The various irrigation district laws providing for service of notice of con- firmation by publication, and posting and personal service upon the land- owners of the district, is not necessary in order to give the court jurisdiction and power to render a judgment of con- firmation valid and binding against such property owners upon all questions in- volved in the case, such service by pub- lication or by publication and posting being sufficient. Crall v. Poso Irr. Dist., 87 Cal 140, 146, 26 Pac. 797 (1890);' In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897); Fogg v. Perris Irr. Dist., 154 Cal. 209, 97 Pac. 316 (1908) ; Ahern v. Board of Directors of High Line Irr. Dist., 39 Colo. 409, 89 Pac. 963 (1907); Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 MOO.-)); Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909); Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). See Mayo v. Ah Loy, 32 Cal. 477, 91 Am. Dec. 595 (18G7) ; People v. Doe, 36 Cal. 220 (1868) ; Eitel v. Foote, 39 Cal. 439 (1870). See ante II, B, 6, e, this note. G. Jurisdiction. 1. Generally. The California Confirmatory Act of March 16, 1889, confers jurisdiction upon the court only to "examine and determine the legality and validity of, and approve and confirm" the proceed- ings under the statute for the formation of the district; and any other or further judgment or decree entered is unauthor- ized. In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). Jurisdiction is conferred upon the court by the Confirmatory Act of 1889 only in those cases where the bonds of the district are sold, under section 16 of the Wright Act, to raise money for investment in a water system, and does not apply to section 12 of the Wright Act, providing for bonds to purchase property therein authorized. Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). Under the Idaho Irrigation District Laws (Laws 1899, p. 408, § 2, as amended by Laws 1901, p. 194, § 11) it is provided that "the proceedings of said board of directors in making such apportionment of cost and the said list of such apportionment shall be included, with other features of the organization of such district which are subject to judicial examination and confirmation, as provided in sections 16-20, of this Act." Oregon Short Line R. Co. v. Pio- neer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 47 with the particular lands owned by the railway company, and because the particular tract owned by the railway company is not designated upon the list, that the board of directors did not intend to assess benefits against the same, and that in fact no assessment was made or intended to be made against such right of way. This argument of counsel over- looks the fact that the statute does not intend that the board shall lay the assessment of benefits to the several tracts of land according to each separate ownership. The intention of the statute evidently was to re- quire the board to lay the assessment of benefits against each legal sub- division within said district, and where less than a legal subdivision was benefited in a different degree or amount than the entire legal sub- division, then the board is required by the statute to fix and determine the benefit accruing to such particular tract; but where the entire legal Jurisdiction of court to make adjudi- cation confirming the organization of an irrigation district is not affected by fraud in creating dummy or fictitious freeholders for the purpose of signing the petition for formation of the dis- trict, where the fraud does not appear upon the face of the record. Fogg v. Perris Irr. Dist., 154 Cal. 209, 214, 97 Pac. 316 (1908). See ante II, B, 3, c, this note. 2. Questions Reviewable. On notice of application to confirm the issue of bonds, based on the petition re- quired by the statute, an inquiry into the validity of the original organization of the district is necessarily involved, and the confirmatory decree may adjudge the validity of the organization of the district without special prayer in that behalf. Fogg v. Perris Irr. Dist., 154 Cal. 209, 217, 97 Pac. 316 (1908). See post VI, D, 5 and 7, this note. And the court is empowered and given juris- diction, upon the hearing, to examine and determine the legality and validity of, and to approve and confirm, each and all of the steps in the proceedings for the organization of the district and the issuance and sale of bonds, from and in- cluding the petition for the organization. Fogg v. Perris Irr. Dist., 154 Cal. 209, 217, 97 Pac. 316 (1908); Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905); Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909); Board of Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 1086 (1895). And in Idaho the court may review and approve the apportionment of costs and assessment of benefits, and the lists thereof. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). 3. Illegal Bond Issue. It has been said that a decree of the court confirming void bonds, not issued nor sold under the terms of the Wright Act, and not within the Confirmation Act of March 16, 1889, is void for want of jurisdiction of the subject-matter. Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). In the case of proceedings for the confirmation of a district illegally organized, where the bonds thereof have been issued, some of which have been sold to bona fide holders, the rights of such holders will not be determined in such action for the reason that such rights can be deter- mined only in a proper action to which they are made parties. In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897). H. Errors, etc., Disregarded. In a proceeding for the confirmation of an irrigation district formed under 48 Water and Mineral Cases. [Idaho subdivision is benefited equally, then the board may lay such assessment against the legal subdivision as such, and such action includes all parts thereof; and the mere fact that the board have failed to designate the true owner of a portion of such legal subdivision will not affect the legality of the assessment made, where it is clearly shown that it was the intention and purpose, and the board in fact did assess the benefits equally to all parts of such tract. The railroad company knew what property it owned; it knew the legal subdivisions over which its right of way passed and knew the benefits assessed to such legal subdivisions, and was advised by the list prepared of such fact, just as effectively as though the right of way had been described by metes and bounds. In this connection counsel for respondent also argue that inasmuch as the district made no effort to collect any taxes upon the plaintiff's right the Idaho Irrigation Laws (Laws 1903, p. 150), the court must disregard any error, irregularity or omission which does not affect the substantial rights of the parties to such proceedings. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). I. Issues. 1. Generally. In an action for the confirmation ot an irrigation district or the issuance and sale of bonds thereby, any person interested in the district may appear and resist the application. Board of Directors of Alfalfa Irr. Dist. v. Col- lins, 46 Neb. 411, 64 N. W. 1086 (1895). Where proceedings for the confirma- tion of the organization of an irrigation district are contested by answer, it is necessary for the directors of the dis- trict to prove that a petition was pre- sented to the board of supervisors signed by fifty, or a majority, of the freeholders owning land within the dis- trict; the proof of such petition cannot be made by recitals in the record of the board of supervisors, and the petition itself cannot be properly received in evi- dence without proof of its execution and that the signers thereof were freeholders of the district. In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). See ante II, B, 3, a, this note. 2. Defense of Fraud. The defense of fraudulent organiza- tion being set up to confirmation pro- ceedings, the fact that the statute of limitations is available to the district as a defense (see post IV, F, this note) does not prevent the issue from being shown on the merits. People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381 (1904). 3. Burden of Proof. In an action for the confirmation of the organization of an irrigation district and of the issuance and sale of bonds thereby, the corporation is the actor and has the burden of proof to establish the issues. In re Madera Irr. Dist., 92 Cal. 296, 330, 339, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891); Directors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). As to burden of proof in action to con- firm a bond issue, see post VI, D, 6, this note. And where an issue is made touching the qualifications of the sign- ers of the petition, the burden is upon the board of directors to prove the qualifications of the signers, the de- cision of the board of county commis- sioners that in their judgment they were such, is not sufficient proof. Ahern v. Board of Directors of High Line Irr. Dist., 39 Colo. 409, 89 Pac. 963 (1907). 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 49 of way for the years 1902, 1903, and 1904, that this clearly indicates that the board did not consider such property subject to assessment. The law, however, determines the duty of the respondent's property to contribute its share of the taxes of said district; and the fact that the officials of such district did not attempt to collect taxes against such property during any one or more years, would not relieve such property of its share of tax- ation or its liability to be assessed according to law within said district- We are unable to discover any reason, either in law or equity, why the respondent's property should be relieved from its liability to taxation for the benefit of said district from the mere fact that the officials of said district failed to list and assess such property for any particular year. The liability of the respondent's property for taxation is fixed by law and not by the acts of the officials in listing and assessing such J. Decree of Confirmation. 1. Generally. The decrees of the state court having jurisdiction, approving the organization of an irrigation district, are conclusive against any attack upon the validity of the organization. Miller v. Perris Irr. Dist., 85 Fed. 693 (1898) ; Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (1890); Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pac. 484 (1894). See also In re Central Irr. Dist., 117 Cal. 382, 49 Pac. 354 (1897). And the de- cisions of the state court are binding upon the federal courts. Miller v. Per- ns Irr. Dist., 85 Fed. 693 (1898). See ante III, D, this note. 2. Collateral Attack. A judgment and decree confirming the organization of an irrigation district, etc., cannot be assailed collaterally in quo warranto proceedings or otherwise. People ex rel. Fogg v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399 ( 1901 ) ; Port- neuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909). See post IV, D and E, this note. 3. Bond Issue. Decree confirming proceeding for sale of bonds, made in pursuance of the stat- ute, confirming the original proceedings for the formation of the district, and subsequent proceedings changing the W. & M.— 4 boundaries and approving bond sales, made after a first invalid decree confirm- ing proceedings of the district up to an order for the sale of certain bonds, will protect the district and the bondholders against any attack upon the validity of the district organization or the issuance of bonds, and will render harmless any error of the trial court in holding the first decree invalid. Fogg v. Perris Irr. Dist., 154 Cal. 209, 217, 97 Pac. 316 (1908). See People v. Linda Vista Irr. Dist., 128 Cal. 477, 480, 61 Pac. 86 (1900). Such adjudication determining the validity of the proceedings is a valid plea in bar to an action seeking to re- strain the sale of bonds of the district, brought by the party constructively served by publication in the proceedings in rem, and no alleged defects in the organization can be reviewed in the in- junction proceedings. Crall v. Poso Irr. Dist., 87 Cal. 140, 26 Pac. 797 (1890). 4. Obtained by Fraud. A decree of confirmation procured by fraud upon the court, — e. g., by means of a false affidavit, which stated that notice of the hearing requisite to con- ferring jurisdiction had been actually given as required by law — may be set aside by a court of equity. People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac 381 (1904). See Lapham v. Campbell, 50 Water and Mineral Cases. [Idaho property although the negligence of the officers may prevent the collec tion of such tax. Certainly the railroad company cannot complain if the district failed to assess its property for the years 1902, 1903, and 1904. Such failure did not in any way injure the railway company but was clearly to its benefit ; and it cannot be allowed to complain of future legal assessments because of such failure. But as we understand the contention of counsel for respondent, it is that the failure to assess such property for the years 1902, 1903, and 1904 clearly indicates that the district did not intend to make assessments against such property, and that such failure to assess indicates that no benefits were laid against the respondent's property. This argument, however, overlooks the fact that the law determines what property shall be subject to tax in such district, and commits only to the board of directors the duty of determin- 61 Cal. 296 (1882); Dunlap v. Steere, 92 Cal. 347, 28 Pae. 563, 27 Am. St. Rep. 143 (1891); Curtis v. Schell, 129 Cal. 208, 61 Pac. 591, 79 Am. St. Rep. 107 (1900); People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381 (1904). See notes 54 Am. St. Rep. 245, 27 Am. St. Rep. 143. 5. Res Adjudicata. A judgment and decree in favor of the regularity and validity of the organiza- tion of an irrigation district or of the issue of bonds thereof in respect to speci- fied objections made thereto is res adju- dicata as to the things determined in such former suit within the issues pre- sented to the court (see ante III, D, this note), but not in respect to objec tions not presented to the court in the former action. In re Central Irr. Dist., 117 Cal. 382, 387, 49 Pac. 354 (1897). See ante III, D, this note. K. New Trial. Under the provisions of section 4 of the California Wright Act, providing that in proceedings to confirm the organiza- tion and bonds of an irrigation district, a motion for a new trial must be made upon the minutes of the court, is invalid because, as special legislation, it contra- venes Const., art. 4, § 25, subd. 3. Cullen v. Glendora Water Co., 113 Cal. 503, 512, 45 Pac. 822, 1047 (1896). See 39 Pac. 769 (1895). A new trial may be granted as to a specified issue, and denied as to other issues in proceedings for the confirma- tion of the organization of an irriga- tion district and of the issuance and sale of bonds. Directors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). L. Bight of Appeal. Under the provisions of the California Confirmation Act (Stats. 1889, p. 212), an appeal from a judgment validating the organization of an irrigation district may be taken within ten days after entry of the judgment, and no notice is required to be given of the entry of the judgment in order to set the time run- ning within which an appeal may be taken. Palmdale Irr. Dist. v. Rathke, 91 Cal. 538, 27 Pac. 783 (1891). Under the Idaho Irrigation District Laws, any one dissatisfied with the judg- ment of confirmation of an irrigation district has the right of appeal to the supreme court. Portneuf Irr. Co. Lim- ited v. Budge, 16 Idaho 116, 100 Pae. 1046 (1909). M. Action to Set Aside. A judgment and decree confirming the validity and regularity of the organiza- tion of an irrigation district and the issue of bonds thereof cannot be attacked collaterally in quo warranto proceedinga 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 51 ing the benefits and carrying out the clerical provisions as to the method of assessment. So, under the view we take of this case, it can make no difference whether the directors intended to assess such property or not. The law made it their duty to assess all property in the district accord- ing to benefits fixed by them under the provisions of the law. We are clearly of the opinion that under the statute the assessment of benefits to lands within an irrigation district is strictly a proceeding in rem, and that the object and purpose of the statute is to have determined upon an equitable basis, the benefits accruing to the lands within said district as a basis for levying future assessments for maintaining said district; and this without reference to the ownership of such land, and that if in preparing such list it appears that the board have laid the benefits to all the legal subdivisions within said district, then the mere or otherwise (see ante III, J, 2, this note) ; but an action on behalf of the people may be brought to set aside such judgment and confirmation of the or- ganization of an irrigation district on the ground of fraud. Such action, when brought, is not governed by the limita- tions in sections 338 and 343 of the California Code of Civil Procedure, but by section 3 of the Wright Act, as amended by Act of March 20, 1891, pro- viding that no action can be commenced or maintained, or defense made affecting the validity of the organization of an irrigation district unless the same shall have been commenced or made within two years after the making of the entry of said order. People v. Perris Irr. Dist.,* 142 Cal. 601, 76 Pac. 381 (1904). IV. Attack on District, Bonds, etc. A. In General. Under the California Irrigation Dis- trict Laws, the regularity of the organ- ization of an irrigation district is attackable only by proceedings under the Act of 1889, supplementary to the Wright Act. Miller v. Perris Irr. Dist., 85 Fed. 693, 701 (1898) ; In re Central Irr. Dist v 117 Cal. 382, 387, 49 Pac. 354 (1897). The decree of confirmation is nothing more than evidence of the validity of the organization, and is con- clusive evidence so long as it stands un- impeached. People v. Linda Vista Irr. Dist., 128 Cal. 447, 61 Pac. 86 (1900); People ex rel. Fogg v. Perris Irr. Dist., 132 Cal. 289, 292, 64 Pac. 399 (1901); People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381 (1904). But it is an adju- dication only, is no part of the pro- ceedings for the organization, and an attack upon the decree is not an attack upon the validity of the organization. People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 381 (1904). The decree of the state court in this regard is binding upon the federal courts. Miller v. Per- ris Irr. Dist., 85 Fed. 693 (1898). See ante III, D, this note. B. By District. In those cases where an irrigation district has been illegally organized and as a de facto irrigation district has in- curred obligations, the illegality of the organization of the district cannot be pleaded by the district itself for the purpose of avoiding the obligations it has incurred while acting as such dis- trict. Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). C. By Individual. The validity of the organization of an irrigation district, reputed to be such, and acting under the forms of law re- lating to and governing irrigation dis- tricts, cannot be attacked under the Wright Act by a private individual, 52 Water and Mineral Cases. [Idaho fact that the board have failed to designate the true owner of such legal subdivisions, or the particular description of fractional parts thereof, but have indicated the ownership of the larger tract of which the smaller may be a part and laid the benefits against the same, the proceedings of the board in determining such benefits will not be declared or held to be void. The fixing and determination of benefits is not the levying of a tax. It is nothing more than the determination of values as a basis for future assessments ; and it seems to us that, in determining the ques- tion of value, the question of ownership is of no consequence. The rail- road company were advised by the law itself that the board of directors must examine all the tracts of land within the district and apportion the costs to the same, and were advised that whatever lands they might own within the limits of such district would be subjected to the proper pro- either directly or collaterally. Miller v. Perris Irr. Dist., 85 Fed. 693 (1898); Miller v. Perris Irr. Dist., 92 Fed. 263 (1899); Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). D. By the People — Quo Warranto. The decree of court confirming the or- ganization of an irrigation district can- not be assailed in quo warranto pro- ceedings brought by an individual or a' public officer on relation of the People; the decree of confirmation of the dis- trict theretofore issued is conclusive upon all parties that all the steps neces- sary for the proper organization of the district had been taken. People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86 (1900) ; People ex rel. Fogg v. Per- ris Irr. Dist., 132 Cal. 289, 64 Pac. 399 (1901). See ante III, D, this note. Quo warranto proceedings brought in the name of the people, upon the relation of a private person, to determine whether an irrigation district has a valid and legal existence, and whether its pre- tended officers are acting without au- thority of law, is subject to the same rules of law applicable to other litiga- tions, and no injury can come to the state by the dismissal of the action, for the reason that if the defendant cor- poration is illegally exercising the fran- chise, the order of dismissal will not be a bar to another action because a wrong- ful exercise of a franchise is a continu- ously renewed usurpation on which a new cause of action arises each day. People ex rel. Stone v. Jefferds, 126 Cal. 296, 58 Pac. 704 (1899). See People ex rel. Attorney General v. Stanford, 77 Cal. 360, 18 Pac. 85, 19 Pac. 693 (1888). On action of quo warranto against an irrigation district charged with usurpa- tion and unlawful exercise of powers and franchise, a bona fide purchaser of the bonds who has been permitted to inter- vene may avail himself of all the pro- cedure and remedies to which the de- fendant district was entitled, including an appeal from the judgment rendered against it. People ex rel. Fogg v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399 (1901). E. Collateral Attack. The organization of an irrigation dis- trict under the provisions of the Irriga- tion District Law, and the proceedings had in that regard, including the deter- mination of the county board as to those matters which are by the statute com- mitted to its consideration, investiga- tion, and determination, and the judg- ment or decree of confirmation of the organization or of the validity of a bond issue or a bond sale, cannot be collater- ally attacked. United States. — Norton v. Shelby County, 118 U. S. 425, 30 L. Ed. 178, 1909] Oregon Shoet Line R. Co. v. Pioneer Irrigation Dist. 53 portion of such cost; and it would be recognizing a technical objection without merit to say that, because the board did not incorporate within the list a minute description of the company's property or name the owner of the same, the company has not been advised of the assessment of benefits to such land. We cannot agree with this contention. It is also argued by counsel for respondent that section n of the act of March 6, 1899, as amended by the laws of 1901 (Laws 1901, p. 194), is unconstitutional, for the reason that such section makes no provision for notice to the landowner of the time when the assessment of benefits will be made. While it is true the statute makes no provision for notice to the landowner that on a particular day the board of directors will proceed to assess benefits to the lands of said district, yet the statute did notify every landowner whose lands were included within said dis- 6 Sup. Ct. 1121 (1886); Miller v. Per- ris Irr. Dist., 85 Fed. 693 (1898), 92 Fed. 263 (1899); Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). California. — Pec pie v. La Rue, 67 Cal. 526, 8 Pac. 84 (1885); Crall v. Poso Irr. Dist., 87 Colo. 140, 26 Pac. 797' (1890); Rialto Irr. Dist. v. Brandon, 103 Cal. 384, 37 Pae. 484 (1894) ; Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894) ; People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86 (1900) ; People ex rel. Fogg v. Perris Irr. Dist., 132 Cal. 289, 64 Pac. 399 (1901); People v. Per- ris Irr. Dist., 142 Cal. 601, 76 Pac. 381 (1904). Idaho. — Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909). Nebraska. — State v. Several Parcels of Land, 80 Neb. 424, 114 N. W. 283 (1907). Washington. — Rothchild v. Rollinger, 32 Wash. 307, 73 Pac. 367 (1903) ; Pur- din v. Washington Nat. Bldg. Loan & Inv. Assoc, 41 Wash. 395, 83 Pac. 723 (1906). F. Limitation of Action. Under the California Law regulating irrigation districts (Cal. Acts, March 7, 1887, § 3, as amended March 21, 1890), an action attacking an irrigation district on the ground of fraud, is barred if not brought within two years after the or- der of organization is made and entered by the board of county supervisors de- claring the district duly organized (Miller v. Perris Irr. Dist., 92 Fed. 263 —1899) ; but it is held that this limita- tion on the attack of the organization of a district does not apply to suits to annul confirmation. People v. Perris Irr. Dist., 142 Cal. 601, 76 Pac. 331 (1904). In action to confirm, where the statute of limitations is available to the district as a defense, fraud set up on opposition to confirmation may be con- sidered, on the merits, by the court. See ante III, I, 2, this note. V. Officers of — Powers and Duties. A. In General. An irrigation district being a quasi public municipal corporation (see I, H, 1, this note) its officers are public of- ficers or agents. Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 309, 17 Sup. Ct. 56 (1896); Herring v. Mo- desto Irr. Dist., 95 Fed. 705 (1899);' In re Madera Irr. Dist., 92 Cal. 296, 321, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891) ; People v. Selma Irr. Dist., 98 Cal. 206, 208, 32 Pac. 1047 (1893) ; Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894); Perry v. Otay Irr. Dist., 127 Cal. 565, 60 Pac. 40 (1900); Board of Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N. W. 1086 (1895). 54: Water and Mineral Cases. [Idaho trict, that if the district was organized such lands would be required to bear their equal share of the expenses of said district and the system of irrigation maintained therein; and the law also notified every landowner that the amount of benefits to be assessed had been committed to the determination of the board of directors of such district, and that such board was required to critically examine each tract or legal subdivision of land within said district with a view of determining the benefits which would accrue to the same. The law gave this notice to each landowner, when the notice of the presentation and hearing of the petition was given, and our attention has not been called to any constitutional pro- vision which would prevent the legislature from authorizing the board of directors of an irrigation district to examine and determine the ques- tion of benefits, where the landowner had been fully advised and noti- In all irrigation districts formed un- der the various statutory proceedings regulating the manner of creating irri- gation districts, the officers thereof have such powers and duties as are conferred by the respective statutes under which the district is formed. Crippen v. X. Y. Irr. Ditch Co., 32 Colo. 447, 76 Pac. 794 (1904) ; Pioneer Irr. Dist. v. Camp- bell, 10 Idaho 159, 77 Pac. 328 (1904) ; Settlers' Irr. Dist. v. Settlers' Canal Co., 14 Idaho 504, 94 Pac. 829 (1908) ; Little Walla Walla Irr. Dist. v. Preston, 46 Or. 5, 78 Pac. 982 (1904) ; Eyan v. Tut- ty, 13 Wyo. 122, 78 Pac. 661 (1904). B. Board of Directors. 1. Generally. Irrigation districts being quasi public municipal corporations, and the officers thereof being public officers or agents, the board of directors of such district do not occupy positions antagonistic to the dis- trict; they are merely the agents, and the district is the principal. Tregea v. Modesto Irr. Dist., 164 U. S. 179, 186, 41 L. Ed. 395, 398, 17 Sup. Ct. 52 (1896). 2. Duties and Powers of. a. Generally. The duties and powers of the board of directors of an irrigation district are such only as are expressly conferred up- on the board, by statute or are impliedly necessary in carrying out the main pur- poses of the statute under which the district is organized. Stimson v. Alles- andro Irr. Dist., 135 Cal. 389, 67 Pac. 496, 1034 (1902) ; Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). An irrigation district being a munici- pal public corporation, persons dealing with the board of directors of such dis- trict are charged with a knowledge of all the limitations upon the powers of the officers of such district and can ac- quire any right of action under written instruments entered into in disregard of the statutory requirements. Hughson v. Crane, 115 Cal. 407, 47 Pac. 120 (1896). b. Under California Laws — Election at Large. Under the provisions of the amend- ment of 1891 to the California Wright Act, notice by the board of directors for the election of a new board of five direc- tors by the district at large, is valid and sufficient without dividing the irrigation district into five supervisorial districts for the purposes of such election. Cullen v. Glendora Water Co., 113 Cal. 503. 512. 45 Pac. 822, 1047 (1896). See 39 Pac. 769 (1895). c. Under Nebraska Laws. Under the Nebraska Irrigation District Laws (Comp. Laws 1903, c. 993a) the board of directors of an irrigation dis- trict may acquire by purchase or con- demnation all lands necessary for the construction, use, maintenance, repair, and improvement of canals. Andrews v. 1909] Oregon Shoet Line R. Co. v. Pioneer Irrigation Dist. 55 fied of the organization of such district, and the fact that in the process and development of organization one of the steps was the determination of the amount of benefits to the lands in said district. The determination of the question of benefits is not the fixing of a tax. It is merely an appraisement and a fixing of values of the lands of said district as a basis for future assessments; and, as heretofore held in this opinion, the land- owner is given an opportunity to contest the question of benefits upon the final hearing for the confirmation of said district. He is thus given full opportunity for his day in court upon all questions involving the legality of the district and the apportionment of the costs according to benefits, as well as the legality and validity of the bonds. As to the assessment levied for the year 1905, the record in this case shows the following order : "A correction of the assessment roll of the Lillian Irr. Dist., 66 Neb. 461, 97 N. W. 336 (1893). And under the Act of 1895 (Laws 1895, c. 70, § 13), requiring the board of directors of the district, as soon as practicable after its organization, to de- termine the amount of money necessary to be raised, and to call a special elec- tion at which shall be submitted the question of issuing bonds in the amount determined, this duty of the board should be performed at once, but failure to act promptly does not relieve the board from its continuing obligation, or nullify the action of the electors in the forma- tion of the district. Baltes v. Farmers' Irr. Dist., 60 Neb. 310, 83 N. W. 83 (1900). d. Under Oregon Laws. Under the Oregon District Irrigation Law (Laws 1895, p. 19) the board of directors of the district have power to enter upon land to make surveys and to locate the necessary irrigation works, canals, etc. They may acquire by pur- chase or condemnation or other lawful means, all lands, water rights, reservoir sites and other property necessary for the construction, use, supply, etc., of the canals and works to be purchased and constructed by the corporation. They may also construct the necessary dams, reservoirs, and works for the collection of water for the district, and do any other lawful act necessary to be done that sufficient water may be furnished to the landowners of the district for irrigation purposes. Little Walla Walla Irr. Dist. v. Preston, 46 Or. 5, 78 Pac. 982 (1904). e. To Make Plans and Specifications. Under the various irrigation laws pro- viding for and regulating the formation and management of irrigation districts, the board of directors of an irrigation district are required to make plans and specifications preliminary to the work of construction or of assessment to pay for the construction and installation of the system. Thus, under the California Wright Act the board of directors are required to adopt a plan or plans in the alternative for the acquisition and dis- tribution of water, and for the construc- tion of necessary canals and works before a valid estimate of the money required can be made. Cullen v. Glendora Water Co., 113 Cal. 503, 521, 45 Pac. 822, 1047 (1896). See 39 Pac. 769 (1895). See also Healy v. Anglo-Californian Bank, 5 Cal. App. 278, 90 Pac. 54 (1907). And under the Oregon Irrigation District Law (Laws 1905, p. 19) the board of directors of the irrigation district, after adopting plans for canals, storage reservoirs, and works, shall give notice by public adver- tisement calling for bids for construction of the same Little Walla Walla Irr. Dist. 56 Watee and Mineeal Cases. [Idaho district having been completed, which said assessment roll shows the value of the assessable property of the district to be $214,376.67, and the board having before it a statement of the estimated expenditures for the care, operation, management, and improvement for the fiscal year begin- ning July 1, 1905, and ending June 30, 1906, which statement is on file in this office * * * it is hereby ordered that there be and is hereby levied and assessed at the rate of seven and one-half per centum against each and every dollar of the said $214,376.67, the assessed valuation of the district for said maintenance purposes, which assessment is to be listed and carried out and entered in the proper book by the secretary and delivered to the treasurer of the district for collection. It further ap- pearing that the amount of interest accruing on the bonds of the district for the ensuing year, * * * it is hereby ordered that there be and is v. Preston, 46 Or. 5, 78 Pax;. 982 (1904). And under all the laws, such notice call- ing for bids for construction work must describe the work substantially according to the plans and specifications. Healy v. Anglo-Californian Bank, 5 Cal. App. 278, 90 Pac. 54 (1907). Where, in compliance with the par- ticular statute under which an irriga- tion district is organized, surveys, plans, specifications, and maps have been duly made, upon which there has been an issuance of bonds and the system of irri- gation has been constructed in part, and the proceedings from the bonds are in- adequate for the completion of the con- struction and installation of the system a new bond issue may be authorized without further or new plans and speci- fications being procured by the board of directors. Pioneer Irr. Dist. v. Camp- bell, 10 Idaho 159, 77 Pac. 328 (1904). Where the statute under which an irri- gation district is organized provides for the preparation of plans and specifica- tions, etc., as the basis for a bond issue, and an irrigation company may contract with an engineer to furnish plans for the construction of a proposed canal, from which the board of directors of the district may estimate the cost thereof and the amount of bonds to be voted therefor. Such work is preliminary to the work of construction, and is not to be paid for out of the construction fund. Willow Springs Irr. Dist. v. Wil- son, 74 Neb. 269, 104 N. W. 165 (1905). C. Collector. The collector of an irrigation district, acting as such, is a de facto officer of the district and need not prove that he was duly elected where his right to the office is not called in question. Baxter v. Vineland Irr. Dist., 136 Cal. 185, sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). The salary of such collector and his commissions and expenses in litigation to enforce the collection of assessments levied by the district can be paid out of the treasury after due allowance by the board only, and upon a warrant properly drawn therefor; the collector cannot offset against assess- ments collected by him, which are a pub- lic fund, his claim for salary, commis- sions, and expenses in litigation and en- forcement of the collection of assessments. Perry v. Otay Irr. Dist., 127 Cal. 565, 60 Pac. 40 (1900). D. Treasurer. The treasurer of an irrigation district has such duties to perform as are im- posed on him by the provisions of the statute under which the irrigation dis- trict is formed; and among such duties of the treasurer is that to pay the in- terest coupons upon the bonds issued 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 57 hereby levied at the rate of seven and one-half per centum against each and every dollar of the said * * * the assessed valuation of the dis- trict, for the purpose of paying said interest, which assessment is to be listed, carried out, and entered in the proper 'book and delivered to the treasurer for collection. It further appearing that the warrants in the redemption list of the district amount to the sum * * * it is hereby ordered that there be and hereby is levied and assessed against each and every dollar of the said, etc. * * * It further appearing that in addi- tion to the foregoing estimated expenditures * * * there be and hereby is levied and assessed a toll in the sum of one dollar against each and every lot within the limits of the said cities of Caldwell and Nampa." The record then shows that the parties stipulated that the description contained in the complaint and set out in the notice of sale for delinquent by the district; this duty is one result- ing from an office or station of trust. But the personal liability of the treasurer for interest on interest coupons attached to bonds issued by the district for failure to pay such coupons on presentation can- not be enforced by mandamus. Hewel v. Hogin, 3 Cal. App. 248, 84 Pac. 1002 (1906). E. Superintendent of Irrigation Company. A superintendent of irrigation, elected by the voters of an irrigation district organized in certain portions of a county, the functions of whose office are to be exercised only in such portions of the county where the district is organized, is an officer of such district, and not of the county. Knox v. Los Angeles County, 58 Cal. 50. F. Salaries of. 1. Generally. The salaries of officers and the ex- penses of conducting an irrigation dis- trict are to be paid out of the fund pro- vided for that purpose by the law under which the district is organized, and any fund created by such statute from a particular source cannot be diverted from the application which the statute makes of such fund. Miller v. Patterson, 120 Cal. 286, 52 Pac. 589 (1898). See ante II, E, this note. A fund derived wholly from tolls and charges fixed by the beard of directors of the district upon consumers of water, using the pipes and canals of a district, is a part of the general fund of a dis- trict, applicable to the payment of sala- ries of employees and other expenses provided for in section 37 of the Wright Act, where those salaries and expenses are not otherwise provided for, and the fact that the fund is carried on the books of the irrigation district as "the water fund" in no wise affects its character as a general fund. Mitchell v. Patterson, 120 Cal. 286, 52 Pac. 589 (1898). 2. Mandamus to Enforce. In an action against an irrigation dis- trict to enforce the payment of salary, a misnomer in regard to the name of the president of an irrigation district in findings, judgment and statement on appeal, in mandamus proceedings to com- pel the payment of warrants issued to a former officer of the district for salary accrued and unpaid during his incum- bency, where the name of the president is accurately set forth in the complaint, is a mere clerical error which may be corrected by order, upon the court's attention being called to it. Mitchell v. 58 Water and Mineral Cases. [Idaho taxes is the description of the right of way of the plaintiff company as contained upon the assessment roll for the year 1905, and is an exact copy of the assessment roll so far as the description is concerned. The description thus referred to, as it appears in the complaint and in the delinquent notice, is as follows: Idaho Central R. R., lots 7 and 8, blk. 87; lots 2 to 6 and 9 to 12, blk. 98; lots 7 and 8, blk. 90, Nampa G. & K $10.94 O. S. L. R. R. Beginning at intersection of center line of track and north line SW 1-4 NW 1-4, sec. 22-3-2, thence northwesterly a strip of land 200 ft. wide lying 100 ft. each side of center line of 0. S. L. track, through sec. 22, 21-16, 17, 8, 7, 6, Tp. 3 N. R. 2 W.j sec. 1, 3, 3; sec. 36, 35, 26, 27, 22, Tp. 4 N. R. 3 W.; to intersection with N. line SW on quarter sec. 22-4-3-1S6, 3A $331.55 A number of other descriptions similar to the above follow. The ques- tion arises, Was this a compliance with the statute? Patterson, 120 Cal. 286, 52 Pac. 589 (1898). VI. Bonds of. A. In General. The court will take judicial notice of the financial history of the bonds of an irrigation district. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). Where the secretary's name is litho- graphed on the coupons of the bonds of an irrigation district, but the bonds are not signed by him, as required by the irrigation district law, the bonds are void. Wright v. East Riverside Irr. Dist., 138 Fed. 313 (1905). Where lands have been excluded from a district, or a landowner has waived his right to the use of water from the district in accordance with the provisions of 1he law under which an irrigation" district is formed, his lands will not be liable for the bonds issued by the dis- trict, or the interest thereon, and can- not be assessed for the payment of either. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). See post VI, O, and VII, L, N, 2, this note. B. Attack on. 1. Generally. The regularity and the validity of the issue of bonds by an irrigation district issued under the provisons of the Wright Act can be attacked only under the pro- visions of that act. Miller v. Perris Irr. Dist., 85 Fed. 693, 701 (1S98) ; In re Central Irr. Dist., 117 Cal. 382, 387, 49 Pac. 354 (1S97). Where it is not shown that the bonds issued by an irri- gation district are in the hands of bona fide holders, they may be declared in- valid on proper showing made. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896); Baxter v. Vineland Irr. Dist., 136 Cal. 1S5, 190 (1902), sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). A void bond issue cannot be confirmed. See ante III, G, 3, this note. 2. Action to Cancel, a. Generally. A landowner and taxpayer within an irrigation district may maintain an action on behalf of himself and other landowners similarly situated for the cancellation of bonds of the irrigation district which have been illegally issued, and to enjoin further issue of such bonds, and to enjoin the levy of assessments to pay annual interest on the bonds already issued, and may make the district and the board of directors parties defendant to the action. Sechrist v. Rialto Irr. Dist., 129 Cal. 640, 62 Pac. 261 (1900). b. Complaint, Allegations in. In an action by a landowner and tax- 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 59 Section 26 of the act under consideration provides: "At its regular meeting in October the board of directors shall levy an assessment upon the basis as determined in the manner provided in section eleven of this act, sufficient to raise the annual interest on the outstanding bonds. * * * The secretary of the board must compute and enter into a sepa- rate column of the assessment book the respective sums, in dollars and cents, to be paid as an assessment on the property therein enumerated." It will thus be seen that the order of the board levying such assess- ment embraces within its terms every act required by the statute to be done by the board in levying such assessment, and that the assessment roll was made up and contained every fact required to be stated therein by this statute. The order of the board directed: "Which assessment is to be listed and carried out and entered in the proper book by the payer within an irrigation district to have canceled bonds issued by the dis- trict under an illegal order, he need not allege in his complaint or show on the trial that he made a previous demand on the district to bring such action. Sechrist v. Rialto Irr. Dist., 129 Cal. 640, 62 Pac. 261 (1900); and he need not aver in his complaint or show on the hearing a tender of restitution by him- self or by the district of the considera- tion received by the district for such bonds. Miller v. Perris Irr. Dist., 92 Fed. 263 (1899) ; Sechrist v. Rialto Irr. Dist., 129 Cal. 640, 62 Pac. 261 (1900). See Divine v. Board of Supervisors, 121 Cal. 670, 54 Pac. 262 (1898); Chase v. Los Angeles, 122 Cal. 540, 55 Pac. 414 (1898). In an action to cancel bonds issued by an irrigation district under the Wright Act, which could not be legally issued for labor, alleging that the bonds were issued in payment for labor and materials, it is sufficient to show the invalidity of the bond issue. Miller v. Perris Irr. Dist., 92 Fed. 263 (1899). c. Limitation of Action. In an action to cancel the bonds of an irrigation district, where any part of the cause of action is not barred by the statute of limitations, a demurrer setting up the statute is properly over- ruled. Sechrist v. Rialto Irr. Dist., 129 Cal. 640, 62 Pac. 201 (1900). The statute of limitations against an action to cancel bonds of an irrigation district does not run from the date of the order for the issuance of the bonds, but only from the date of the delivery of the bonds for a valuable consideration. Sechrist v. Rialto Irr. Dist., 129 Cal. 640, 62 Pac. 261 (1900). As to the statute of limitations in such actions, see ante IV, F, this note. 3. Action to Annul Tax Sale, etc. An action brought by a landowner and taxpayer of an irrigation district to annul the sale of his lands for the pur- pose of paying interest on bonds of the district, and to annul the bonds, is a collateral attack upon said bonds. Bax- ter v. Vineland Irr. Dist., 136 Cal. 185 (1902), sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). As to collateral attack, see ante III, J, 2, and IV, E, this note. The owners of the outstanding bonds are proper parties to such an action and may intervene and defend. Baxter v. Vineland Irr. Dist., 136 Cal. 185 (1902), sub nom. Baxter v. Dickin- son, 68 Pac. 601 (1902). C. Bona Fide Purchasers. 1. Generally. The general rule is that bona fide pur- chasers of bonds which recite that they are issued pursuant to law, are not re- 60 Watee and Minekal Cases. [Idaho secretary and delivered to the treasurer of the district for collection." This duty was performed by the secretary in accordance with the direc- tion of the board and the provisions of the statute. Cooley on Taxation, p. 745, states the rule as follows: "The designation of the land will be sufficient if it afford the owner the means of identification and do not positively mislead him or is not calculated to mislead him." In dis- cussing the sufficiency of the description of land, when listed for taxa- tion, the Supreme Court of California in the recent case of Best v. Wohlford, 144 Cal. 733, 78 Pac. 293, says : "The strictness of construc- tion which at one time prevailed in matters of taxation has been greatly relaxed in modern days. The obligation of all citizens to contribute to the expenses of government is recognized, and instead of regarding pro- ceedings for the levying and collection of taxes as hostile to the property quired to look farther, such recital being sufficient evidence. Baxter v. Vine- land Irr. Dist., 136 Cal. 185 (1902), sub nom. Baxter v. Dickinson, 68 Pac. 001 ( 1902) . But this rule does not apply in those cases where the purchaser of the bonds had actual knowledge of a fact which, in connection with the stat- ute, establishes the irregularity of the issue. Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). The reason for this exception is that the board of directors of an irrigation district, which is a quasi public municipal corporation (see ante I, H, 1, this note), have only such powers as are expressly conferred upon them by statute or impliedly neces- sary to carry out the purposes of the ir- rigation law. Stimson v. Allesandro Irr. Dist., 135 Cal. 389, 67 Pac. 496, 1034 (1902); Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). See ante V, B, 2, a, this note. And all per- sons dealing with such board of directors are charged with a knowledge of the limitation upon their power, and can acquire no right of action under written instruments entered into in disregard of the statutory requirements. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). Where bonds issued by an irrigation district are within the authority of the board of directors and not ultra vires, and recite that they were issued in pur- suance of a certain act, and the only question presented is as to irregularities in keeping the records and conducting the bond election which authorized the issue of the bonds, a bona fide purchaser without notice of such irregularities has the right to presume that the bonds are a legal obligation of the district without inquiring into the regularity of tha keeping of the records of the district, or the regularity in conducting the election voting the bonds and the adver- tising of the bonds for sale, and will be protected against any mere irregularities in these regards in the proper exercise of a granted power. Baxter v. Vine- land Trr. Dist., 136 Cal. 185 (1902), sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). Whether a bona fide holder of the bonds of an irrigation district illegally issued at ninety per cent, of their face value to a contractor in payment for work done by him, could be enforced by him against the district, or whether the district would be liable for the interest upon any of the bonds thus illegally disposed of, under the California Vv right Act, quaere. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). But he may recover con- sideration therefor. See post VI, C, 2, and VIII, C, 1, this note. 2. Recovery of Consideration. A bona fide holder of irrigation bonds 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 61 owner, he is considered to be interested equally with all other citizens in the prompt collection of the taxes. A tax properly imposed upon his property will be upheld if the description of the property is sufficient to give him notice that it is burdened with the tax." It is next contended that the district has no power or jurisdiction to assess the property of the respondent; that such property can only be assessed by the state board of equalization. The power and jurisdic- tion of the state board of equalization depends wholly upon the au- thority given it by statute; and we are unable to find any provision of the statute which gives to the state board of equalization the power or jurisdiction to assess railroad property or other corporate property within an irrigation district. The power and jurisdiction as given to the state board of equalization by the statute has reference to assessments made which were illegally issued by the dis- trict, who desires to have the considera- tion paid therefor restored by the dis- trict, must allege in his complaint and prove on the trial facts which will en- title him to such restoration. Miller v. Perris Irr. Dist., 92 Fed. 263 (1899). See post VIII, C, 1, this note. The holder of bonds who took them with knowledge that they had been is- sued in violation of the statute in exchange for water-right certificates, or for warrants given in payment of claims for labor and salaries, cannot recover the consideration paid therefor. Lee- man v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). See post VI, H, this note. D. Confirmation Proceedings. 1. Generally. Proceedings for the confirmation of the bond issue of an irrigation district are provided for by the various statutes un- der which the irrigation districts are organized; such proceedings are proceed- ings in rem the same as proceedings for the confirmation of the organization of the district (see ante II, D, this note), and the judgment is binding accordingly. Perris Irr. Dist. v. Thompson, 116 Fed. 832, 836 (1902) : Modesto Irr. Dist. v. Tregea, 88 Cal. 334. 26 Pac. 237 (1891) ; Cullen v. Glendora Water Co., 113 Cal. 503, 512, 45 Pac. 822, 1047 (1896). See 39 Pac. 769 (1895); People v. Linda Vista Irr. Dist., 128 Cal. 477, 481, 61 Pac. 86 (1900). The object of such pro- ceedings is to establish the validity of the bonds as against the irrigation dis- trict and all persons interested therein, and would be effective for the protection of investors, and the judgment must bind not only the parties appearing, but the whole world. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). In such proceedings under the statute to obtain judgment of confirmation and approval of the issuance of bonds, the presumptions and rules of construction which apply in a collateral attack upon the bonds after they have been issued and confirmed, have no application; the plaintiff district is required to show every essential fact to the establishment of the issues presented for determination. Directors of Fallbrook Irr. Dist., v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). See post VI, D, 6, this note. 2. Board of Directors May Bring Action. The board of directors of an irrigation district, as the legal representatives thereof, may file a petition in pursuance of the statute under which the district is organized, to have a bond issue theretofore issued confirmed (see ante III, E, this note) ; and under the Idaho Laws (Laws 1903, p. 150) such proceed- 62 "Watee and Mineral Cases. [Idaho for general state, county, and municipal purposes. The assessment made by the board of directors is simply fixing the rate necessary and required to raise revenue required by the district as apportioned to the lands of the district, according to benefits. The principle involved in assessments for local improvements is different from that underlying general taxation. The organization of the district, in the first instance, was intended for local improvement, and the assessment levied is for the purpose of carrying out the local improvement; and we do not understand the rule to be that the general method of fixing values and making assessments against property for general tax purposes applies to levies made for local improvements. As said by the Supreme Court of California in the case of Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379: "Nor does it follow that the method of assessments, and ings may be confirmed where the said bonds or any of them have been sold at the time of the commencement of such proceedings. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). 3. Landowner May Bring Action. Any landowner within an irrigation district interested in the price to be realized on the sale of the bonds thereof has a right to insist that the required steps to give the court jurisdiction to pronounce a binding degree be regularly taken, and to this end may become an actor. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). 4. Notice. In order that the proceedings for the confirmation of the bond issue of an irrigation district shall be valid under the California Act (Stats. 1SS9, p. 212), there is required the publication of a notice of the filing of the petition, and' this notice, where properly given, is suf- ficient to give the court jurisdiction to render a judgment affirming the legality of the organization of the district and the legality and validity of its ordinance for the issuance of its bonds, and such judgment will be binding upon the lands of the district and the owners thereof. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 20 Pac. 237 (1891). In those cases where the original petition is amended after the first pub- lication and before the hearing to con- firm the bonds, by setting out other orders for the issue or sale of bonds, but not referred to in the original petition, the publication of a new notice is re- quired to give the court jurisdiction. Modesto Irr. Co. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). 5. Petition and Prayer. The prayer to the petition for the con- firmation of the validity of bonds ordered and issued by an irrigation district must be read in connection with the petition itself in order to understand its meaning, and if it be for the judicial examination, approval and confirmation of all the proceedings set out in the petition, it includes those for the organ- ization of the district, for they, like the rest, are essential to the legality and validity of the bonds. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). See ante III, G, 2, this note. 6. Burden of Proof. In a proceeding for the confirmation of the bond issue of an irrigation district the board of directors or the party petitioning is the actor in the case, and has the burden of proof of the issues upon which the petition asks the judg- ment of the court. In re Madera Irr. Dist., 92 Cal. 296, 330, 339, 28 Pac. 272, 1909] Oregon Shoet Line E. Co. v. Pioneer Irrigation Dist. 63 their collection, adopted, must be assimilated to, and follow exactly, the mode provided in the Constitution for the assessment and collection of taxes for general state purposes. The nature of the assessment is one for local improvements, which, however, eventuate in the advancement of the public good, and such assessments and collections can be lawfully made. It is 'clear, that those clauses of the Constitution which provide that taxation shall be equal and uniform, and which prescribe the mode of assessment, and the persons by whom it shall be made, and that all property shall be taxed, have no application to assessments levied for local improvement.' " The legislature, in providing for the valuation and taxation of telegraph, telephone, and railroad tracts, had reference only to assessments made for general state, county, and municipal pur- poses, and did not have in mind or contemplate assessments made for 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891) ; Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793. See ante III, I, 3, this note. 7. Decree. In an application on notice duly given for the confirmation of the bond issue of an irrigation district, based on peti- tion required by the statute, an inquiry into the validity of the original organ- ization of the district is necessarily in- volved, and the confirmatory decree may adjudge the validity of the organization of the district without special prayer in that behalf. Fogg v. Perris Irr. Dist., 154 Cal- 209, 217, 97 Pac. 316 (1908). See III, G, 2, this note. The decree is res adjudicata and binds the whole world. See ante III, D, this note. Where a decree confirming the validity of pro- ceedings for the issue of bonds is partly valid and partly void, its invalidity will not affect the validity of that portion of the decree in which the court had juris- diction to pronounce judgment and enter its decree. Modesto Irr. Co. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). E. Coupons, Payment of. The interest coupons attached to bonds issued by an irrigation district are pay- able out of the fund and in the manner provided by the law under which the district is organized, and the holders of the bonds are entitled to have the moneys collected for the payment of the in- terest coupons applied to that purpose. The methods of enforcement of this right are treated in post VI, K, 1, 2, this note. F. Date of Issue. The date of issue of the bonds of an irrigation district may become important in determining the validity of such issue, particularly where that date shows that the bonds were issued to run for a longer or a shorter term than that provided by the statute under which they were issued (see post VI, Q, this note) ; and where such bonds are antedated, and not signed by the person who was secretary of the irrigation district at the time of the supposed issue thereof, as required by law, they are void. Wright v. East Riverside Irr. Dist., 138 Fed. 313 (1905). In determining the effect and legality of such bonds, the entire instrument must be considered. Thus where irriga- tion bonds bore date of November 17, 1890, and the first payment of semi- annual interest fell due on July 1, 1891, and the instalments of principal were imade payable in the required number of years after January 1, 1891, the date from which they began to bear interest, the bonds are to be regarded in effect as having been issued on January 1, 1891, which may be treated as their real date, instead of the nominal date of November 64 "Watee and Mineral Cases. [Idaho local improvements ; and such, necessarily, is true for the reason that the assessments for local improvements necessarily must depend upon the benefits accruing to the property assessed ; and it would be impracticable for the state board of equalization to determine, at its stated and regular meetings as fixed by law, the question of benefits accruing or to accrue by reason of local improvements. While section 12, art. 7, of the Constitution, creates the state board of equalization, yet the duties of such board are left to the legislature to prescribe, and the duties thus prescribed by the legislature have to do with the assessment of railroad property for general taxation pur- poses. Section 6 of the same article provides that "the legislature shall not impose taxes for the purpose of any county, city, town, or other municipal corporation, but may by law invest in the corporate authori- 17, 1890; and execution and issuance of the bonds in this form and manner is a substantial compliance with the statute both as to date and term of running. Stowell v. Rialto Irr. Dist., 155 Cal. 215, 100 Pac. 248 (1909). See Flagg v. City of Palmyra, 33 Mo. 440 (1863) ; State v. Moore, 46 Neb. 590, 65 N. W. 193, 50 Am. St. Rep. 626 (1895) ; Yesler v. City of Seattle, 1 Wash. St. 308, 25 Pac. 1014 (1891); Rock Creek Township v. Strong, 96 U. S. 271, 24 L. Ed. 815 ( 1877 ) ; Dows v. Town of Elmwood, 34 Fed. 114 (1888); South St. Paul v. Lamprecht Bros. Co., 88 Fed. 449 (1898). G. De Facto District. The bonds issued by a de facto irriga- tion district are valid in the hands of innocent purchasers for value. See ante I, F, this note. H. Disposition of, Methods of 1. California Statute. Under the California Wright Act, and the amendments thereof, the only method in which the board of directors of an irrigation district can dispose of the bonds voted by the district is in the man- ner provided by the statute, which is either ( 1 ) to exchange them for property purchased for construction purposes at their par value under the provision of section 12, and (2) to sell them for money in the open market, under the restrictions and limitations of section 16 of that act, at not less than ninety per cent, of their face value; they cannot (3) exchange them for any other pur- pose, or make payments with them at ninety per cent, of their face value in discharge of any obligation of the dis- trict, or (4) dispose of the bonds or the moneys received from a sale thereof for any other object than to provide for the construction fund contemplated by the act. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896); Stowell v. Rialto Irr. Dist., 155 Cal. 215, 100 Pac. 248 (1909). Thus, they cannot deliver bonds to a contractor in payment for construction work done by him for the district (Hughson v. Crane, 115 Cal. 404, 47 Pao. 120 — 1896; Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24—1903), or for warrants given in payment of claims for labor and salaries. Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). While the board of directors may, under the provisions of section 12, issue and turn over the bonds, at their par value, in payment for property acquired (Stow- ell v. Rialto Irr. Dist., 155 Cal. 215, 100 Pac. 248 — 1909), they are not authorized to make a contract with a water company whereby the district issues all its bonds in consideration of the mere executory promises of the water company that it will in the future lease water to the 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 65 ties thereof, respectively, the power to assess and collect taxes for all purposes of such corporation;" and section 8 of the same article pro- vides : "The power to tax corporations or corporate property, both real and personal, shall never be relinquished or suspended, and all corpo- rations in this state or doing business therein, shall be subject to taxation for state, county, school, municipal, and other purposes, on real and per- sonal property owned or used by them, and not by this Constitution ex- empted from taxation within the territorial limits of the authority levy- ing the tax." Yet, while the Constitution creates the state board of equalization, it also authorizes the legislature to invest in counties, cities, towns, or other municipal corporations the power to assess and collect taxes, and also provides that the power to tax corporate property shall never be relinquished or suspended; and that all corporations in this district at a stipulated rental. Stein- son v. Allesandro Irr. Dist., 135 Cal. 389, 392, 393, 67 Pac. 496, 1034 (1902); Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). The provisions of section 15 of the Wright Act are merely directory as to the method in which bonds are to be disposed of, leaving the matter entirely in the discretion of the board of directors. Modesto Irr. Dist. v. Tregea, SS Cal. 334, 26 Pac. 237 (1891). The directors need not person- ally sell the bonds; this may be done by another under their direction. See Brownell v. Town of Greenwich, 114 N. Y. 518, 22 N. E. 24, 4 L. R. A. 685 (1889). But the board of directors has no power to turn over the bonds to an agent to be sold by him at less than ninety per cent, of their par value. Hugh- son v. Crane, 115 Cal. 404, 47 Pac. 120 (1896) ; Stowell v. Rialto Irr. Dist., 155 Cal. 215, 100 Pac. 248 (1909). The ex- press provisions of section 12, giving to the board power to exchange the bonds of the district at their par value for certain property, excludes the right of the board to exchange them for any other purpose or to dispose of them in any other manner than by sale as authorized by section 16. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896) ; Stowell v. Rialto Irr. Dist., 155 Cal. 215, 100 Pac. 248 (1909). W. & M— 5 Where bonds of an irrigation district have been illegally issued in exchange for water-right certificates, or for war- rants given in payment of claims for labor and salaries, an action cannot be maintained upon such bonds by a plain- tiff who knew when he took the bonds that they were so issued in violation of statute. Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). As to right to recover consideration paid therefor, see ante VI, C, 2, and post VIII, C, 1, this note. 2. Nebraska Statute. Under the Nebraska Irrigation Law3 (Laws 1895, c. 70, § 10) the board of directors of an irrigation district have the right to use the bonds issued by the district at their par value, instead of the proceeds thereof, in acquiring or con- structing irrigation ditches or canals. Baltes v. Farmers' Irr. Dist., 60 Neb. 310, 83 N. W. 83 (1900). 3. Washington Statute. It is held that under the Washington Statute (Sess. Laws 1889—90, p. 671; Laws 1895, p. 432) where an irrigation district issues bonds for the purpose of constructing the irrigation system un- der contract with a person to pay a cer- tain sum therefor, who is unable to carry out the agreement, the board of directors may deliver the same to the 66 Watee and Minekal Cases. [Idaho state shall be subject to taxation for state, county, school, municipal, and other purposes within the territorial limits of the authority levying the tax. The legislature, therefore, having provided for the organiza- tion of an irrigation district, and giving the power to such district to levy assessments within the territorial limits of the same, vested such district with the power to levy assessments for such local im- provement, and such legislation was clearly authorized by the pro- visions of the Constitution. This question is fully discussed and the authorities reviewed in the recent work of Page & Jones on Taxation by Assessment, vol. I, c. 5. One other question remains for consideration. The trial court found that the town lots in Nampa were not and never had been made a part of the Pioneer Irrigation District, and this finding, we think, is fully supported by the evidence. The record shows that on the 7th day of contractor who did the work. Kincade v. Witherop, 29 Wash. 10, 69 Pac. 399 (1902). I. Election for Bond Issue. 1. Generally. The various statutes governing the organization of irrigation districts pro- vide for an election to determine whether bonds shall be issued for the purpose of constructing the necessary irrigation canals and works and acquiring the necessary property therefor, and for assessments upon all lands in the district of a tax sufficient to pay all charges and expenses and all obligations incurred by virtue of the issuance of any bonds by said district. See Little Walla Walla Irr. Dist. v. Preston, 46 Or. 5, 78 Pac. 982 (1904). In the conducting of these elections where the board of supervisors, in can- vassing the votes, merely recite the vote which had been cast, without making any entry in the record declaring the results, this is not in compliance with the re- quirement of the statute, which specifies that the result of the election shall be "declared and entered of record." Direc- tors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). The clerk of the board of directors of an irrigation district cannot, without direction of the said board, amend the record of the canvassing of an election for the issuance of bonds by inserting therein of his own accord a record of the de- clared result of the said election. Directors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). 2. Notice. Under the provisions of section 16 of the Wright Act there is required to be given a notice of the special election for the purpose of issuing bonds and this notice may be given under the provisions of that section to the exclusion of the provisions of section 5 of the same act, which requires a posting in the office of the board of a general notice. Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). Notice of election called for the pur- pose of issuing bonds directing the open- ing and closing of the polls either earlier or later than the time fixed by the statute, and allowing persons to vote at the election either before or after the time fixed by statute, renders the elec- tion nugatory. Directors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). But see ante II, B, 8, d, this note. 3. Second Election. Where an irrigation district which has been duly organized, in constructing 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 67 June, 1902, a petition was filed with the secretary of the district praying that said town lots in the town of Nampa be taken into and included within the boundaries of the district. The record shows the petition was referred to the attorney of the district. He made his report thereon, and thereafter the petition was granted, and the territory ordered in- cluded within said district. It appears, however, and counsel for ap- pellant admit, that the notice required by the statute of the presentation of such petition was not given, and that the order admitting the pro- posed territory did not set out the description of the boundaries as changed, and that no record of the boundaries as changed properly certified was filed in the office of the county recorder. Counsel for .appellant admit that these defects would nullify the action of the works as laid out by the surveys, maps, plans and specifications previously adopt- ed, has exhausted the receipts from the sale of bonds originally issued, and the works are not yet completed, the said surveys, maps, etc., having been duly made in accordance with the require- ments of section 15 of the Idaho Irriga- tion Act (Sess. Laws 1903, p. 165), it is unnecessary that there shall be a new survey and additional maps and plans before another election can be called for a further bond issue to complete the works. Pioneer Irr. Dist. v. Campbell, 10 Idaho 159, 77 Pac. 328 (1904). J. Exclusion of Territory. Where an irrigation district has been duly organized, the subsequent exclusion of territory therefrom under the provis- ions of the statute governing, does not affect the validity of bonds theretofore issued. Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). K. Procedure to Enforce. 1. Action at Law. In an action at law to recover on the bonds of an irrigation district or on the interest coupons thereof, the question whether the district has derived any benefit from the improvement is im- material and constitutes no defense. Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). Where coupons attached to the bonds of an irrigation district issued in pur- suance of the California Wright Act (Stats. 1887, p. 29), made payable un- der that law at the office of the treasur- er of the district, are not paid on pre- sentation to the treasurer, the holder thereof may bring suit thereon without a demand on the treasurer of the county in which the office of the irrigation dis- trict treasurer is situated, notwith- standing the provision of the law that on the failure of the board of directors of the irrigation district to levy an assess- ment to meet such coupons, it becomes the duty of the county officials to levy a tax therefor, the collection of which devolves upon the county treasurer. Shepard v. Tulare Irr. Dist., 94 Fed. 1 (1899), affirmed in 185 U. S. 1, 46 L. Ed. 773, 22 Sup. Ct. 531 (1902); Herr- ing v. Modesto Irr. Dist., 95 Fed. 705 (1899). Under the federal rule, the procedure for the holder of irrigation district bonds which, or the coupons thereof, are not paid, or on which payment is refused, is to sue at law and by judgment of the court establish the validity of the claim and the amount due, and by the return of an ordinary execution ascertain that no property of the district can be found liable to such execution and sufficient to satisfy the judgment; and then by proceedings in mandamus compel the levy of an assessment sufficient to meet the obligation. Shepard v. Tulare Irr. 68 Watee and Mineral Cases. [Idaho board in their efforts to incorporate and include within said district that portion of Nampa set out in the record; and we believe that the admission of counsel for appellant is correct. These matters are statutory and jurisdictional, and it was just as necessary that the statute be followed in these jurisdictional matters in changing the boundaries of a district, as creating the district in the first instance. But counsel for appellant contend that inasmuch as this objection has not been raised until long years after the district was incorporated, and, the boundaries having been acquiesced in by the people generally, and the people having accepted the assessments levied and paid the same, that it is too late to now raise the question. This argument is based upon the case of State v. Steunenberg, 5 Idaho 1, 45 Pac. 462, in which the validity of the incorporation of the city of Caldwell was involved, and in which case the court held that the in- Dist., 94 Fed. 1 (1899), affirmed in 185 U. S. 1, 46 L. Ed. 773, 22 Sup. Ct. 531 (1902). See Waite v. Santa Cruz, 89 Fed. 619 (1898); Heine v. Levee Com- missioners, 86 U. S. (19 Wall.) 655, 22 L. Ed. 223 (1873). See post VI, K, 2, b, this note. 2. Mandamus. a. To Compel Payment. In those cases where the bonds and interest coupons of an irrigation dis- trict have not been refunded, the holders of the bonds issued are entitled to have the money collected for the payment of the interest thereon so applied, which right cannot be defeated by a transfer of the fund to other purposes, and man- damus will issue to compel the treasurer of the irrigation district to pay the interest coupons issued by such district. Hewel v. Hogin, 3 Cal. App. 248, 84 Pac. 1002 (1906). See Mitchell v. Pat- terson, 120 Cal. 286, 52 Pac. 589 (1898) ; Meyer v. Widber, 126 Cal. 252, 58 Pac. 532 (1899) ; Rutherford v. Hudson River Traction Co. (N. J. L.), 63 Atl. 84 (1906). On hearing of a petition for mandamus to compel the treasurer to pay interest coupons, where the law makes such in- terest payable out of a fund to be pro- vided by assessments by the board ot directors, evidence that an assessment had been levied for the purpose of paying interest on such bonds shows that money in the hands of the treasurer was sub- ject to the payment of the interest cou- pons, and that parol evidence to the effect that the purpose of the assessment was different from that declared in the resolution adopted by the board when the assessment was levied, is not admis- sible. Hewel v. Hogin, 3 Cal. App. 248, 84 Pac. 1002 (1906). b. To Compel Levy of Assessment. Under the procedure in the federal courts, before mandamus to compel the levy of an assessment to pay bonds or interest can be maintained, the holder of the bonds is required to reduce his bonds or coupons to judgment and have execution returned. See Shepard v. Tulare Irr. Dist., 94 Fed. 1 (1899). affirmed in 185 U. S. 1, 46 L. Ed. 773, 22 Sup. Ct. 531 (1902); Herring v. Modesto Irr. Dist., 95 Fed. 705 (1899). See ante VI, K, 1, this note. But in the state courts it has been held that mandamus will lie to enforce levy of an assessment for the payment of interest coupons without first reduc- ing them to judgment. Shinbone v. Randolph County, 56 Ala. 183 (1876). Mandamus lies against the officers of an irrigation district, organized under 1909] Oregon Shokt Line R. Co. v. Pioneer Irrigation Dist. 69 corporation of the city had been acquiesced in by the people expressed in two elections covering a period of three years; and that new duties and obligations had been assumed by the corporation, and that during such time no citizen or taxpayer had ever in any way questioned the validity of such organization. That case, however, is very different from the one now under consideration. In that case the citizens of the city participated in the municipal affairs of the city under such organization; and by so participating therein clearly recognized the validity of such incorporation and at no time questioned the same. In the case under consideration, however, the railroad company did not participate in recognizing the validity of the change in the boundaries of such dis- trict by incorporating therein the town lots of the city of Nampa, for the California Wright Act (Laws 1887, p. 29), at the suit of a bondholder who has recovered judgment on the bonds, to compel the officers of the district to levy an assessment against the property in the district to raise money from which to pay the judgment. Marre v. San Jacinto & P. V. Irr. Dist., 131 Fed. 780 (1904). See Heine v. Levee Commis- sioners, 86 U. S. (19 Wall.) 655, 22 L. Ed. 223 (1873) ; Holt County v. National Life Ins. Co., 80 Fed. 686 25 C. C. A. 469, 475 (1897). This is on the general principle that where the law provides that a tax shall be levied to pay corporation bonds, mandamus after judgment, to compel the levying of the tax, is the appropriate remedy of the bond holder. See United States ex rel. Von Hoffman v. Quincy, 71 U. S. (4 Wall.) 535, 18 L. Ed. 403 (1866); United States ex rel. Riggs v. Johnson County, 73 U. S. (6 Wall.) 166, 18 L. Ed. 768 (1867); Heine v. Board of Levee Commissioners, 86 U. S. (19 Wall.) 655, 22 L. Ed. 223 (1873). L. Form of. Under the requirement of section 15 of the California Wright Act, bonds drawn so as to be payable in installments are in proper form. Central Irr. Dist. v. De Lappe, 79 Cal. 351, 21 Pac. 825 (1889). The bonds issued by an irrigation district shall be in form such that they are payable in installments, of such percentage each year as is designated in the statute. In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. State Rep. 106, 14 L. R. A. 755 (1891). Bonds do not fail to comply with the statutory requirement that they shall be "negotiable in form," by making the pay- ment of principal payable only upon sur- render of the coupons; the insertion in the instrument of a stipulation for thia condition, which would in any event be implied, does not affect its negotiability. Stowell v. Rialto Irr. Dist., 155 Cal. 215, 100 Pac. 248 (1909). See Humboldt Township v. Ling, 92 U. S. 643, 23 L. Ed. 752 (1875); Franks v. Wessels, 64 N. Y. 155 (1876). Under the Washington Statute (Laws 1889-90, p. 671; Laws 1895, p. 432), which requires irrigation district bonds to be negotiable in form, bonds reciting that they and the interest thereon are to be paid by revenue derived from an annual tax upon the real property of the district, are negotiable, though reciting that they are payable from a particular fund. Kincade v. Witherop, 29 Wash. 10, 69 Pac. 399 (1902). See Mercer County v. Hackett, 68 U. S. (1 Wall.) 83, 17 L. Ed. 548 (1863). M. Interest on. The interest on the bonds of an irriga- tion district must be such as is provided by the act under which the district is 70 Water and Mineral Cases. [Idaho the reason that no assessment was made against such company during the years after the boundary lines were so changed as to include therein such lots until the assessment made in 1905 which is under consider- ation in this case. The railroad company was not called upon to chal- lenge the validity of the boundary of such district by including such lots until the district had taken some action against such lots which in some way affected the railway company ; and this did not occur until the year 1905. The railway company was not in a position to question the validity of the change in the boundaries of such district until such time. For these reasons, we hold that the lower court committed no error in holding that the town lots described in the complaint, as being situ- ated within the town of Nampa, were not at such time, and have never been, included within the boundary lines of such irrigation district. organized, or, in the absence of any pro- vision by that act, such as is provided by the general statutes of the state. No in- terest, however, is collectible against an irrigation district or the treasurer there- of (see ante V, D, this note) where no provisions for such interest are made. Hewel v. Hogin, 3 Cal. App. 248, 84 Pac. 1002 (1906). Irrigation bonds issued under Washing- ton Irrigation District Law (Laws 1889- 90, p. 671; Laws 1895, p. 432), sold to purchasers under condition that they were to draw interest from payment of the purchase money, being dated July 1, and drawing interest therefrom, though it was not until after July that the purchaser paid according to his contract, when he paid three hundred dollars more than he was obliged to under his agree- ment to purchase to make up for the accumulated interest, were held in sub- stantial compliance with the provisions of the statute. Kincade v. Witherop, 29 Wash. 10, 69 Pac. 399 (1902). N. Issuance of. The bonds of an irrigation district must be issued in conformity with the act by which they are authorized (Wright v. East Riverside Irr. Dist., 138 Fed. 313— 1905) } and for the pur- poses only for which authorized. Marre v. San Jacinto & P. V. R. Irr. Dist., 131 Fed. 780 (1904) ; Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903); Mer- chants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937 (1904) ; Bos- kowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904); Pioneer Irr. Dist. v. Campbell, 10 Idaho 159, 77 Pac. 328 (1904). The power of the irrigation district, as a public corporation to issue bonds, must be exercised strictly in pursuance of the manner prescribed by statute. There is no doubt regarding it being within the power of the state to prescribe the man- ner of issuing and the form in which such bonds shall be issued and executed in order to bind the public for their pay- ment; and if not so issued and executed they create no legal liability. Anthony v. County of Jasper, 101 U. S. 693, 25 L. Ed. 1005 (1879), distinguishing Town of Weyauwega v. Ayling, 99 U. S. 112, 25 L. Ed. 470 (1878); Stowell v. Rialto Irr. Dist., 155 Cal. 215, 222, 100 Pac. 248 (1909). See 148 U. S. 395, 37 L. Ed. 495, 13 Sup. a. 638 (1893). Authority to issue bonds is wholly inde- pendent of the source of supplying of water for the district and the board of direct- ors may change plans for obtaining its water and obtain it from another source when they find it to the advantage of the district to do so, without in any way impairing the validity of the bonds there- tofore voted and ordered issued. Modesto 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 71 The judgment of the district court is affirmed as to the town lots in the town of Nampa not having been included within said district and made subject to assessments, and is reversed as to all other parts of said judg- ment; and a new trial is ordered. Costs awarded to appellant. AILSHIE, J., concurs. SULLIVAN, C. J. (dissenting). I am unable to concur in the conclu- sion reached by my associates except in so far as it affirms the judg- ment of the district court as to the town lots in the town in Nampa. I do not think it was ever contemplated by said district irrigation act that a railroad right of way could ever be benefited by irrigation or that such Irr. Co. v. Tregea, 88 Cal. 334, 26 Pac. 237 (1891). The matter of the issuance of bonds may be considered and determined at a regularly adjourned meeting, the same as if it had been presented and deter- mined on the day fixed for the regular meeting. Directors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). A resolution of a board of directors for the issuance of bonds for a specified amount may be rescinded by such board. Directors of Fallbrook Irr. Dist. v. Abila, 106 Cal. 365, 39 Pac. 793 (1895). A contract by the board of directors of an irrigation district whereby it issues all its bonds in consideration of water" certificates from a water company which has no water plant within the district, on an executory promise in the future to lease water to the amount specified in the certificates to the district at a fixed rental, is void. Leeman v. Perris Irr. Dist., 140 Cal. 540, 74 Pac. 24 (1903). Irrigation bonds issued to a contractor at ninety per cent, of their face value in payment for construction work done by him, are illegally issued and do not constitute a valid obligation against the district in his hands, and an injunction will lie to enjoin the collection of an assessment for interest upon such bonds. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). As to recovery of the consideration for such bonds, see ante VI, C, 2; post VIII, C, 1, this note. The directors of an irrigation district' have no authority to appropriate the bonds which the electors have voted to issue for the construction of an irriga- tion works to the payment of salaries or expenditures incurred in the .management of the property. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). O. Lien on Lands. Under the various irrigation district acts, the bonds issued by the district and the interest payable thereon are made a lien upon the lands in the irrigation district. Such lien is purely statutory and must be strictly pursued. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). It has been said that under the Cali- fornia Statute (Stats. 1887, p. 27, and Laws 1891, p. 149, § 122) creating irri- gation districts and authorizing a board of directors to levy an assessment to pay interest on bonds, in an action to confirm the levy of an assessment the court cannot declare that the bonds were a lien on the land or interfere with the discretion of the board in determining the amount of assessment to be raised except in case of abuse of discretion. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). 72 Watee and Mineral Cases. [Idaho right of way would ever become susceptible of irrigation, from a system of works that might be used by an irrigation district for irrigating the lands in the district. The first section of said act (Laws 1899, p. 408) refers to lands susceptible of "one mode" of irrigation, and was never in- tended to include lands, in assessing benefits, that were never intended to be irrigated. The record, to my mind, clearly shows that those who organized this district and the governing authorities of the district for at least three years after it was organized, did not consider the railroad right of way as land coming within the terms of said district irrigation act as being lands susceptible of irrigation. As no benefits were ever assessed against said right of way, the railroad company has not had its day in court A landowner who has, in accordance with the provisions of the law under which the district is organized, waived his right to the use of water from the district, is not liable on the bonds issued by the district, and assessments to pay interest or principal of such bonds will not be a lien upon his lands. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). P. Supplying Water for Use Outside^ of District. Where an irrigation district organized in accordance with the provisions of the Idaho Statute (Laws 1899, p. 408, as amended by Laws 1901, p. 191) has issued bonds for the construction or purchase of the canal system and works, the fact that said system, when completed, will supply and water lands outside of the district, does not render the bonds issued by the district invalid. Settlers' Irr. Dist., v. Settlers' Canal Co., 14 Idaho 504 94 Pac. 829 (1908). As to supplying water to land outside of the district, see post VIII, B, 2, this note. Q. Term of. Where the statute designates the term for which the bonds of an irrigation district shall run, those bonds in which payment is provided for either at the expiration of an earlier period, as where the statute authorizes bonds payable in not less than ten years from date, and bonds were payable eleven days less than ten years (Wright v. East Riverside Irr. Dist., 138 Fed. 313—1905; Peoples Bank v. School Dist., 3 N. Dak. 496, 57 N. W. 787—1893). See Brownell v. Town of Greenwich, 114 N. Y. 518, 22 N. E. 24—1889; Hoag v. Town of Green- wich, 133 N. Y. 152, 30 N. E. 842— 1892 ; Proctor v. Town of Greenwich, 92 N. Y. 602 — 1883) ; or a longer term (Brenham v. German American Bk., 144 U. S. 173, 188, 36 L. Ed. 390, 12 Sup. Ct. 975—1892; Barnum v. Okoloma, 148 U. S. 393, 37 L. Ed. 495, 13 Sup. Ct. 638 — 1893, approving and following Woodrie v. Okoloma, 57 Miss. 806—1880) than that authorized by statute, will be in- valid. See Stowell v. Rlalto Irr. Dist., 155 Cal. 215, 100 Pac. 248 (1909). Where the bonds of an irrigation dis- trict are antedated so as to make them fall due within a shorter time than that prescribed by the statute, they are void (Gilbert, J., dissenting). Wright v. East Riverside Irr. Dist., 138 Fed. 313 (1905). See ante VI, F, this note. VII. Assessments. A. As to, Generally. Whenever a local improvement is au- thorized, it is for the legislature to pre- scribe a way in which the means to meet its cost shall be raised, whether by gen- eral taxation or by levying the burden upon the district especially benefited by the expenditure. Mobile County v. Kim- ball, 102 U. S. 691, 704, 22 L. Ed. 238 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 73 and had no opportunity to contest an assessment of benefits, for the reason that the board of directors never assessed any benefits to said rail- road right of way; but assessed each 40-acre tract, across which said right of way extends, to the party holding the legal title thereto at six dollars per acre. As said railroad company has not the legal title to said tracts and owns only an easement therein, and that easement not having been assessed, the company has not had its day in court in so far as an assessment of benefits is concerned. The judgment of the district court should be affirmed. On Rehearing. AILSHIE, J. A petition for rehearing has been filed in which com- plaint is made that the court did not cite or review the authorities cited (18S0) ; Hogar v. Reclamation Dist., Ill U. S. 701, 28 L. Ed. 569, 4 Sup. Ct. 663 (1883); Turlock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379 (1888). See ante I, C, 1, this note. Those clauses of the Constitution which provide that taxation shall be equal and uniform, and which prescribe the mode of assessment, and the persons by whom it shall be made, and that all property shall be taxed, have no applica- tion to assessments levied for local im- provements. Hagar v. Supervisors of Yolo County, 47 Cal. 222 (1874); Tur- lock Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379 (1888). 3. As to Levy by Board of Directors. 1. Generally. The board of directors of an irrigation district have power to levy an assess- ment upon the lands and other property- provided within an irrigation district for the purpose of raising money for current expenses to pay the cost of construction or acquisition of a water system and to pay the annual interest on bonds and to meet the bonds at maturity. Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896); Tre- gea v. Owens, 94 Cal. 317, 29 Pac. 643 (1892) ; Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894) ; Woodruff v. Perry, 103 Cal. 611, 37 Pac. 526 (1894) ; City of San Diego v. Linda Vista Irr. Dist., 108 Cal. 189, 41 Pac. 291, 35 L. R. A. 33 (1895); Cooper v. Miller, 113 Cal. 238, 45 Pac. 325 (1896); Lahman v. Hatch, 124 Cal. 1, 56 Pac. 621 (1899); Merchants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 Pac. 937 ( 1904) ; Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909); Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). But under the Idaho Laws before an irrigation district can levy an assess- ment for any purpose, it must be in a position to render some benefit. Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). 2. California Act. Under the California Wright Act, an assessment levied upon the property within an irrigation district organized' under that act is distinct from a tax and is not subject to the constitutional provisions respecting taxation. In re Madera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891); Tregea v. Owens, 94 Cal. 317, 29 Pac. 643 (1892). Under this act it is not necessary to the validity of an assessment that the methods adopted for the levy thereof and for the collection should be assimi- lated to, and follow exactly the mode provided in the state constitution for the assessment and collection of taxes 74 Water and Mineral Cases. [Idaho in appellant's brief- The court has not the time, nor does it often deem it necessary to review at length in written opinions the authorities cited by counsel. Authorities are only useful in so far as they elucidate the reasons for a given rule and make plain the justice such rule accom- plishes. Without stating the several propositions advanced by appel- lant's petition, we will refer briefly to the more prominent ones. First. It must be admitted as fully settled that a railroad right of way acquired under act of Congress of March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), cannot be used or alienated for any other purposes than those named in the grant, and upon a cessation of such use the right granted reverts to the owner of the fee. N. P. Ry. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044. If, for general state purposes. Turloek Irr. Dist. v. Williams, 76 Cal. 360, 18 Pac. 379 (1888). There is a due process of law and equal protection to all when the course pursued for the assessment and collection of taxes is that customarily followed in the state and when the party charged in his property has an opportunity to be heard. Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896). The board of directors of an irrigation district in levying an assessment to pay interest on bonds under the provision of the Wright Act and amendments thereto (Stats. 1887, p. 27; 1891, p. 149, § 122) have a discretion as to the amount of the levy, which the courts cannot interfere with, except in case of abuse of discre- tion. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). See post VII, D, this note. 3. Idaho Act. Under the Idaho Irrigation District Laws (Sess. Laws 1899, p. 408), and the acts amendatory thereof, an irrigation district has power and authority to levy and collect assessments against the land within the district according to benefits received (Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046— 1909) ; but only when in a position to render some benefit. Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). Under this act where the record shows that the board of directors, in levying an assessment for maintenance and to pay tha bonded indebtedness of an irri- gation district, substantially complied with the statute, and the assessment roll is made up in substantial compliance with the statute, the assessment thus levied will be upheld if the description of the property is sufficient to give the landowner notice that such property is burdened with such assessment. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). C. As to Neglect or Refusal to Levy. 1. Duty of County Board. Under the various irrigation district laws, it is made the duty of the board of directors of an irrigation district to levy assessments to raise money where- with to meet the current expenses of op- erating the district, to pay the interest on the bonds, and for retiring the bonds of the district at maturity; and where such directors neglect or refuse to make such levy or levies, it is made the duty of the county board of supervisors or county commissioners of the county in which the district has its office to cause an assessment roll for the district to be prepared, and to make the levy of an assessment to meet the requirements of the district. Board of Supervisors of 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 75 therefore, a sale should be made of the railroad company's right of way, the purchaser would acquire only such rights and interest as the com- pany possessed, and would be limited to the same conditions and restric- tions as to use as were imposed by the original grant. A purchaser at judicial sale under decree of court can acquire only such title and right as the defendant in the action has. Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 93 Pac. 789. Second. Assessments by irrigation districts are made on the land itself — the soil — irrespective of the use. The decisive question is not the use to which an owner is going to devote his land, but, is it suscep- tible of irrigation from the proposed system of irrigation? For such purposes an assessment against the land itself as belonging to the Riverside County v. Thompson, 122 Fed 860 (1903); Nevada Nat. Bank v. Kern County Supervisors, 5 Cal. App. 638, 91 Pac. 192 (1907) ; State ex rel. Witherop v. Brown, 19 Wash. 383, 53 Pac. 548 (1898). In those cases where the county board is required to make a levy on failure or refusal of the board of directors of irri- gation district to make the same, such county board may properly include the expenses of the levy of the assessment therein. Nevada Nat. Bank v. Kern County Supervisors, 5 Cal. App. 638, 91 Pac. 192 (1907). 2. Mandamus. Mandamus lies to compel the county board of supervisors or county commis- sioners to levy an assessment to pay the annual interest on bonds of an irrigation district where the board of directors of such district neglect or refuse to levy such an assessment. Board of Super- visors of Riverside County v. Thompson, 122 Fed. 860 (1903) ; Nevada Nat. Bank v. Kern County Supervisors, 5 Cal. App. 638, 91 Pac. 122 (1907); State ex rel. Witherop v. Brown, 19 Wash. 383, 53 Pac. 548 (1898). And no previous demand on the county board is necessary before commencing such proceedings. Board of Supervisors of Riverside County v. Thompson, 122 Fed. 860 (1903). The writ is properly awarded to compel the supervisors to make the assessment, although the petitioner's de- mand is represented by a judgment against the irrigation district on its bonds. Nevada Nat. Bank v. Kern County Supervisors, 5 Cal. App. 638, 91 Pac. 192 (1907). D. Annual to Pay Interest, Discretion. The board of directors are empowered by section 22 of the Wright Act to levy an assessment sufficient to raise the an- nual interest on the outstanding bonds, and while the authority given is limited to provide for the interest for the bonds that are outstanding at the time of thet levy, it does not require that the amount of the assessment shall be the exact amount of the interest; a discretion in determining how great an assessment' will be sufficient to raise the annual in- terest is lodged in the board of directors, and, unless it can be seen that they have abused this discretion, courts will not interfere with their action in the prem- ises. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896); Escondido High School Dist. v. Escondido Seminary, 130 Cal. 128, 133, 62 Pac. 401 (1900); Bos- kowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904); Lincoln & Dawson County Irr. Dist. v. McNeal, 60 Neb. 621, 83 N. W. 847 (1900). See post VII, J, this note. But an injunction will lie to prevent the enforcement of an excessive assess- ment where the disparity between the 76 Watee and Mineral Cases. [Idaho owner of the fee or paramount title covers all special and limited rights, interest, and easements in the land. While it is generally held that land dedicated to a public use cannot while so held and used be as- sessed for a similar public use or necessity, this does not apply where the ownership of the easement, right, or franchise is private, and the use only to which it is applied is quasi public. In such case the use can be as readily carried out and enjoyed by the public with the ownership in one corporation, organized and created for such ownership and management, as in the hands of another. Where the ownership is in the public, a very different question arises. Third. As to whether a sale of appellant's right of way takes only appellant's easement and right or the entire fee and reversionary right amount of the assessment and the an- nual interest is such as to make it appear that the action of the board was im- proper. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (189G). In an action to enjoin the collector of an irrigation district from the collec- tion of an assessment levied to pay the interest on bonds illegally issued, neither the irrigation district nor its agent for the sale of the bonds, nor the holder of any of the bonds thus disposed of, are necessary parties. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). E. Basis of Assessment. An assessment levied under the Cali- fornia Irrigation Act is levied according to the value of the land, and not accord- ing to the amount of benefits received by the respective parcels, to pay for a public improvement in an irrigation dis- trict, is within the inherent power of taxation, which is not limited to benefits received. Lent v. Tillson, 72 Cal. 404, 429, 14 Pac. 71 (1887); In re Madera Irr. Dist., 92 Cal. 296, 307, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). While the benefit to the land is as- sumed as the basis of the assessment, such benefit is not the true source of the power of the levy; even though the land is not susceptible of irrigation it may be benefited by the improvement, and should bear its proportion of the burden upon the same principle that land in a city which can make no use of a sewer or other street improvement is nevertheless deemed to receive a bene- fit from its construction and is required to pay a portion of its cost. In re Ma- dera Irr. Dist., 92 Cal. 296, 28 Pac. 272, 675, 27 Am. St. Rep. 106, 14 L. R. A. 755 (1891). The California doctrine on the above point seems to be opposed to the current of American cases, according to which local assessments for public improve- ments can be levied only when the im- provements will clearly confer benefits on the property assessed, and then only to the extent of the benefits received. See the following cases: Colorado. — Chew v. Comm'rs Fremont County, 18 Colo. App. 162, 70 Pac. 764 (1902). Connecticut. — Nichols v. Bridgeport, 23 Conn. 189, 204, 60 Am. Dec. 636 (1854) ; Cone v. Hartford, 28 Conn. 303 (1859); Clapp v. Hartford, 35 Conn. 66 (1868). Illinois. — Chicago v. Lamed, 34 111. 203, 279 (1864) ; Lee v. Ruggles, 62 111. 427 (1872); Illinois Cent. R. Co. v. Bloomington, 76 111. 447 (1875); Craw- ford v. People ex rel. Ramsey, 82 111. 557 (1876). Idaho. — See authorities cited infra. Indiana. — Montgomery v. Fuller (Ind.), 13 N. E. 574 (1887); Anderson 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 77 is unimportant here. It is enough for appellant if a sale would take aU its right and vest the same in the purchaser. Of that we think there can be no doubt. That the assessment must be on the basis of benefits to be received is equally true. But that question cannot arise in this case. The company has had its day in court, both before the commis- sioners and in the district court on confirmation proceedings, and the judgment therein is now final, and the company can no longer be heard to question the benefits to be received. As a matter of fact, it is common knowledge that in this state railroad companies do irrigate a part, at least, of their station grounds at all such stations as they can conveniently get water, and it was admitted on oral argument of this case that appellant does irrigate a part of the station grounds covered by this v. Kerns Draining Co., 14 Ind. 199, 77 Am. Dec. 63 (1860); O'Reiley v. Kan- kakee Valley Draining Co., 32 Ind. 169 (1869). Kansas. — Gilmore v. Hentig, 33 Kan. 156, 174, 5 Pac. 781 (1885); Wyandotte County Comm'rs v. Abbott, 52 Kan. 148, 34 Pac. 416 (1893). Louisiana. — In re New Orleans Drain- ing Co., 11 La. Ann. 338 (1856); Ex- celsior Planting & Mfg. Co. v. Green, 39 La. Ann. 455, 1 So. 873 (1887). Massachusetts. — Goddard Petitioner, 33 Mass. (16 Pick.) 504 (1835); Lowell v. Hadley, 49 Mass. (8 Met.) 180 (1844); Wright v. Boston, 63 Mass. (9 Cush.) 233 (1852); Brewer v. Spring- field, 97 Mass. 152 (1867); Green v. Fall River, 113 Mass. 262 (1873). Michigan. — Thomas v. Gain, 35 Mich. 155, 24 Am. Rep. 535 (1876). Minnesota. — Sanborn v. Rice County, 9 Minn. 273 (1864). New Jersey. — Tidewater Co. v. Coster, 18 N. J. Eq. (3 C. E. Gr.) 518, 90 Am. Dec. 634 (1866); State v. Newark, 27 N. J. L. (3 Dutch) 185 (1858); State v. Fuller, 34 N. J. L. (5 Vr.) 227 (1870); In re Drainage of Lands, 35 N. J. L. (6 Vr.) 497 (1872); State v. Jersey City, 36 N. J. L. (7 Vr.) 56 (1872) ; State v. Hoboken, 36 N. J. L. (7 Vr.) 291 (1873); Kean v. Driggs Draining Co., 45 N. J. L. (16 Vr.) 91 (1883); Spear v. Essex Public Road Board, 47 N. J. L. (18 Vr.) 191 (1885) ; 48 N. J. L. (19 Vr.) 372, 9 Atl. 197 (1886); Aldridge v. Essex Public Road Board, 48 N. J. L. (18 Vr.) 366, 5 Atl. 784 (1886); 51 N. J. L. (22 Vr.) 166, 16 Atl. 695 (1888). New York. — People v. Syracuse, 63 N. Y. 291, 299 (1875) ; Stryker v. Kelly, 7 Hill 9, 23, 2 Den. 323 (1844); In re Fourth Ave., 3 Wend. 452 ( 1830) ; In re Albany Street, 11 Wend. 149, 25 Am. Dec. 618 (1834) ; In re Canal Street, 11 Wend. 154 (1834); In re William Street 19 Wend. 678 (1839). Ohio.— Hill v. Higdon, 5 Ohio St. 243, 67 Am. Dec. 289 (1855); Reeves v. Wood County, 8 Ohio St. 333 (1858); Sessions v. Crunkilton, 20 Ohio St. 349 (1870); Chamberlain v. Clevland, 34 Ohio St. 551, 561 (1878). Pennsylvania. — Commonwealth v. Woods, 44 Pa. St. 113 (1862) ; Hammett v. Philadelphia, 65 Pa. St. 146, 3 Am. Rep. 615 (1870— Read and Williams, J J., dissent) ; In re Washington Ave., 69 Pa. St. 352, 8 Am. Rep. 255 (1871) ; Seeley v. Pittsburgh, 82 Pa. St. 360, 22 Am. Rep. 760 (1877); Allegheny City v. Western Pa. R. Co., 138 Pa. St. 375, 21 Atl. 763 (1891). Tennessee. — McBean v. Chandler, 56 Tenn. (9 Heisk.) 349, 24 Am. Rep. 308 (1872). Wisconsin. — Weeks v. Milwaukee, 10 Wis. 186 (1860). 78 Water and Mineral Cases. [Idaho controversy. Whether it be from this system or not is immaterial for the purposes of this inquiry. The question of notice was fully covered in the original opinion. Fourth. It is contended that a sale of a portion of appellant's right of way cannot be made. Elliott on Railroads, vol. 2, § 790, treating of the subject of assessments on a railroad right of way, says : "While it is probably true that there may be a lien on the right of way of a railroad for a local assessment, where such assessment is authorized by statute, the manner of enforcing such assessment is not clearly settled. The right of way of a railway company is a part of the company's property, with- out which it could not perform the duties it owes to the public. To sub- ject a portion of the right of way to a sale to enforce a local improve- Under the Idaho Irrigation Law, and probably under some others, the assess- ments are required to be levied according to the benefits received. Settlers' Irr. Dist. v. Settlers' Canal Co., 14 Idaho 504, 94 Pac. 829 (1908); Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 Pac. 80 (1908) ; Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909); Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908); Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). F. Confirmation. Proceedings for the confirmation of an assessment levied for any purpose by an irrigation district are fully provided for in the respective laws governing their organization and management, and have already been sufficiently discussed in parts III and VI, D, this note. Courts may inquire into and determine the validity of the assessment of an ir- rigation district or other proceedings, but unless the statute has declared the assessment to be a lien, the court cannot adjudge it one, and if the statute has declared it to be a lien and provided for its enforcement, its enforcement can be made in the manner prescribed by statute only. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). Under the Idaho Irrigation District Laws, personal service upon the land- owners is not necessary in order to render judgment confirming an assess- ment binding upon him and his prop- erty; but if he is dissatisfied with the judgment confirming the assessment, he has a right to appeal therefrom. Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). G. Current Expenses, to Meet. Under the California Wright Act (§ 17) the board of directors of an ir- rigation district is authorized and em- powered to levy special assessments to cover the expenses of organization and care, operation, management, repair, and improvement of canals and works, in- cluding salaries, wages, and expenses of management, as well as for the sale of bonds by means of which to make the payments required upon the contracts for the construction of the works. Tre- gea v. O^.vens, 94 Cal. 317, 29 Pac. 643 (1892) ; Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). But it has been held that a "bond expense fund" cannot be included in such assessment in the absence of a special election authorizing an assessment for such fund ; and where the board of directors include in an as- sessment a "bond expense fund" without such authorization, the court in deter- mining that the invalidity of that portion of the assessment should also determine whether the disparity between the amount levied and the amount which the 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. 79 ment would greatly embarrass, if not entirely destroy, the ability of the company to perform its public functions. The rights of the public are re- garded as superior to the rights of any individual, or group of indi- viduals. Local assessments are usually levied on a small portion of a railway right of way, varying from a few feet in length to miles in length. To permit such portion to be sold would prevent the operation of the road, and, on the grounds of public policy, it is held that the ordinary remedy of enforcing the collection of a local assessment by a sale of the property benefited does not apply to the enforcement of an assessment against the right of way of a railway company. While there is a conflict of authority on this subject, the decided weight is that the right of way, if sold to pay the assessment, must be sold as a whole, and board, in its discretion, was authorized to raise for the payment of annual in- terest, was such as to vitiate the entire assessment. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). H. Description of Land. Under the California Irrigation Dis- trict Laws (Sess. Laws 1891, p. 244, § 18, subd. 2) provision is made that, in the assessment books, land within the district shall be listed by township, range, section or fractional section, and where there are no congressional dis- tricts, by metes and bounds or other de- scription sufficient to identify it. An assessment thus entered in the books be- comes a lien upon the land described in such books. Best v. Wohlford, 153 Cal. 17, 94 Pac. 98 (1908). But under this statute the assessment of improvements in an irrigation district in a tax levied for district purposes, need not be de- scribed in the assessment book; all that is necessary is a general description of improvements, with the value at which they are assessed. Lahman v. Hatch, 124 Cal. 1, 56 Pac. 621 (1899). See People v. Rains, 23 Cal. 127 (1863). The substantial rights of persons as- sessed are not affected by the act of the assessor taking away the assessment book while ip the custody of the board of equalizatioi from five o'clock Saturday afternoon uncil Monday morning, for the purpose of adding therein unnecessary description of improvements. Lahman v. Hatch, 124 Cal. 1, 56 Pac. 621 (1899). The misdescription of lands in such book, by misnomer in the ownership, does not invalidate the levy where the assessment is otherwise properly levied. Escondido High School Dist. v. Escondido Seminary, 130 Cal. 128. 62 Pac. 401 (1900). I. Election. Under the provisions of section 37 of the Wright Act, the board of directors of an irrigation district have no author- ity to levy assessments for the payment of expenditures authorized thereby with- out a previous approval by the voters of the district at an election held for that purpose, in accordance with the provis- ions of section 41 of that Act, which provides for the calling of an election for the purpose of submitting the ques- tion of a special assessment when, in the judgment of the board of directors, it may be advisable, and restricts the as- sessment to an authorization to a vote by the district. Tregea v. Owens, 94 Cal. 317, 29 Pac. 643 (1892); Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). And where an assessment is not authorized by a vote of the district the collection may be restrained by an in- junction. Woodruff v. Perry, 103 Cal. 611, 37 Pac. 526 (1894). J. Excessive Levy. Although the board of directors of an 80 Wateb and Mineral Cases. [Idaho not in broken fragments." It will be seen from an examination of the cases cited in the note to this text, as well as the text and notes in 28 Cyc. 121 1, that the great majority of the courts have held that a railroad right of way cannot be sold in parcels or fragments for the satis- faction of local assessments. There are courts, however, which hold to the contrary. This is particularly true in the state of Illinois. Wabash Eastern Ry. Co. v. East Lake F. Dist, 134 111. 384, 25 N. E. 781, 10 L. R. A. 285 ; Chicago & N. W. Ry. Co. v. Village of Elmhurst, 165 111. 148, 46 N. E. 437. It seems to be conceded by all the authorities that the legislature has the power to authorize the sale for local assessments of a portion only of a railroad right of way, or, rather, of the portion or division situated irrigation district has a discretion as to the amount to be levied with which to meet and pay the annual instalment of interest upon the bonds already issued by the district (see ante VII, B, 1, and D, this note), yet where a levy by the directors of an irrigation district is in excess of what they are entitled to im- pose, a party will not be heard in a court of equity seeking to enjoin the collection until he has paid the amount the board had the power to levy upon the land. Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894). The collection of a slight excess over and above the amount required to be made by an assessment to pay the an- nual interest, does not show such an abuse of discretion by the board of di- rectors in levying the assessment as will render a tax deed based upon the assess- ment, invalid. Escondido High School Dist. v. Escondido Seminary, 130 Cal. 128, 62 Pac. 401 (1900). In an action to enjoin the collector of an irrigation district from selling lands to pay an assessment for interest upon bonds, the collector represents the dis- trict for the purposes of the defense only, and not for purposes of seeking affirma- tive relief. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). Bondholders intervening in a suit by landowners to restrain the collection of taxes to pay interest on bonds, are not entitled to affirmative relief, and for that reason cannot maintain a cross-complaint to enforce a lien upon the land in their favor as bona fide purchasers for value. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). Approved arguendo Alpers v. Bliss, 145 Cal. 565, 79 Pac. 171 (1904). A right of action on the part of the landowners to enjoin the board of di- rectors of an irrigation district organ- ized under California Act, March 7, 1887, from making future assessments, accrues with a threatened levy of as- sessments and not with the issuance and sale of the bonds for the payment of the annual interest or the principal with which the assessment is threatened. Mil- ler v. Perris Irr. Dist., 85 Fed. 693 (1898). K. Illegal Levy. An illegal levy of an assessment by an irrigation district may be ratified by payment. See Calahan v. Chilcott Ditch Co., 37 Colo. 331, 86 Pac. 123 (1906). In an action to recover assessments al- leged to be illegally paid under duress, the plaintiff is entitled to plead and prove that the assessment was levied without calling a special election or sub- mitting the question to the qualified electors of the district. Tregea v. Owens, 94 Cal. 317, 29 Pac. 643 (1892). One who pays, under protest, unlawful assessments made against another, and out of the moneys of such other party 1909] Oregon Shoet Line R. Co. v. Pioneee Irrigation Dist. 81 within the taxing district. It is also true that practically all the author- ities holding that the right of way, if sold at all, must be sold in its en- tirety, rest, not upon any constitutional or organic right, but upon what is termed "public policy." It is said by these authorities to be con- trary to the public interest and convenience and detrimental to bond- holders and the railroad company to have a railroad right of way sold in sections or subdivisions. The reason for this rule fails to appeal to us. The danger of a railroad system being divided into numerous sections and sold to divers purchasers is too remote and im- probable to furnish a basis or premise on which to deny jus- tice to taxing districts and a ready means of collecting assessments lawfully levied. We may say here that we know of no principle where provision is made for exclusion of lands already adequately supplied with water, as in Idaho and Nebraska, and held for the purpose of such payment, cannot thereafter recover the same in an action instituted for that purpose. He will be deemed to have no interest* therein or cause of action therefor. Port- neuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 104G (1909). In an action by an owner of land in an irrigation district to void and cancel an assessment levied upon the district, the burden of proof is upon the plaintiff. Baxter v. Vineland Irr. Dist., 136 Cal. 185, sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). L. Lien on Land. Under the various statutes providing for the organization and management of irrigation districts, assessments duly levied and properly ratified by vote con- stitute a lien upon the lands in the district. Merchants' Nat. Bank v. Es- condido Irr. Dist., 144 Cal. 329, 77 Pac. 937 (1904). Thus section 18, subd. 2 of the California Laws of 1891, p. 244, pro- vides that in the assessment books, land within the district shall be listed by township, range, section or fractional section, and where there are no congres- sional districts, by metes and bounds of other description sufficient to identify it, and the California Supreme Court has held that the assessment is a lien on the land described in the assessment book. Best v. Wohlford, 144 Gal. 733, 78 Pac. 293 (1904). In those states, however, W. & M.— 6 the owner of such lands has either waived his right to receive water from the district or has made a showing of sufficient water for land already, his lands are not subject to assessment either for the purpose of current ex- penses to pay interest on bonds or to pay the bonds of the district. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 474, 83 Pac. 499 (1905). M. Misnomer. An assessment by an irrigation dis- trict properly imposed upon the land is not invalidated by a misnomer as to the owner, and a tax deed on sale thereunder is not vitiated thereby. Escondido High School Dist. v. Escondido Seminary, 130 Cal. 128, 62 Pac. 401 (1900). N. Property Subject to. 1. Lands within District. Under the provisions of the various statutes regulating the organization and control of irrigation districts, all the lands within the district are subject to assessment for the purpose of raising funds wherewith to pay the expense of the management of the district, the in- terest on the bonds, and to retire the bonds at maturity. Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909). This is true regardless 82 Water and Mineral Cases. [Idaho of public policy in this state that forbids the sale of a portion of a railroad right of way. In order for a principle or rule to have be- come a part of the public policy of a state, it must have been either ex- pressly or impliedly recognized and acted upon by some one or all of the departments of state government or have found lodgment and recogni- tion, either expressly or impliedly, in the Constitution, the organic law of the question as to what particular use is heing made of any particular tract or piece of land at the time the district is organized; for in determining whether land within a district will be benefited" by an irrigation system, the county board is not limited to lands which will be used for agricultural purposes, or upon which water will be beneficially used, or to lands devoted to any partic- ular purpose. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). And lands which by reason of change of plans have become unnecessary for the purposes of the irrigation district, in the absence in the statute of any provisions for their disposition, remain impressed with the strict trust the same as other lands in the district, and equally subject to assessment. Tulare Irr. Dist. v. Col- lins, 154 Cal. 440, 442, 97 Pac. 1124 (1908). See San Francisco v. LeRoy, 138 U. S. 656, 34 L. Ed. 1097, 11 Sup. Ct. 364 (1890) ; Hart v. Burnett, 15 Cal. 530 (1860); Seale v. Doone, 17 Cal. 476, 484 (1861); Fulton v. Hanlovv, 20 Cal. 450, 480 (1862); Carlton v. Town- send, 28 Cal. 219 (1865) ; San Francisco v. Cannavan, 42 Cal. 541 (1872) j Ames v. City of San Diego, 101 Cal. 390, 35 Pac. 1005 (1894). In California this principle has been applied to assessments for benefits upon lands owned by public corporations not necessary in the exercise of their func- tions. Tulare Irr. Dist. v. Collins, 154* Cal. 440, 443, 97 Pac. 1124 (190S). In Idaho, however, an irrigation district or- ganized under the Idaho Act (Sess. Laws 1899, p. 408) acquires jurisdiction to levy special assessments against any par- ticular tract of land within the district for the purpose of purchasing or con- structing an irrigation system, it must appear that by reason of such construc- tion or purchase, the district is going to be in a position to render benefits of some character, kind or nature, to the partic- ular tract of land on which it seeks to levy its assessments. Jurisdiction in such cases to levy special assessments is de- pendent upon the power and ability to confer benefits to some extent and in some measure, and an absolute inability to confer any benefits, implies and sig- nifies a lack of jurisdiction to levy such assessments. Portneuf Irr. Co. Limited v. Budge, 16 Idaho 116, 100 Pac. 1046 (1909). 2. Lands Detached from District. The board of directors of an irrigation district has no power to levy an assess- ment upon lands not included within the boundary lines of the district in accord- ance with the laws governing the taking in of territory (Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904—1909) ; or being within the district is exempted by the statute for the reason that it is nonirrigable (An- drews v. Lillian Irr. Dist., 66 Neb. 461, 97 N. W. 336—1893; Sowerwine v. Cen- tral Irr. Dist., 85 Neb. 687, 124 N. W. 118 — 1909) ; or where the owner of the land already has sufficient water for the purpose of irrigating his land, and has waived his right to the use of water from the district, in accordance with the provisions of the statute providing for the exclusion from the district of such lands. Nampa & M. Irr. Dist. v. Brose, 11 Idaho 374, 83 Pae. 499 (1905); Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). 1909] Oregon Short Line E. Co. v. Pioneer Irrigation Dist. & of the state. No such principle has been either expressly or impliedly recognized in this state. The contrary has been the uniform rule recog- nized by the legislative department of this state, and enforced by the ex- ecutive and judicial departments in the revenue laws of the state. The irrigation district act (sections 2407-2415, Rev. Codes) directs and re- quires that the specific property on which the assessment is levied shall 3. Telegraph Poles and Wires. Under the provisions of a statute taxing all the real estate within an irrigation district, such district can assess, for pur- poses of revenue, the real property only situated in the district; telegraph noles and wires of teleoTa.nh. comnanv Dass- ine through the district, although situ- ated uDon the right of wav of a railroad company, with its permission, possess the character of personal property, and as such, cannot be taxed by the irrigation district. Western Union Tel. Co. v. Mo- desto Irr. Co., 149 Cal. 662, 87 Pac. 62 (1906). 4. Pueblo Lands of City. Pueblo lands of a city situated within the limits of an irrigation district, which by law are exempted from taxation for general purposes, if so situated as to be susceptible of cultivation by irrigation, and would be benefited thereby, although unoccupied and uncultivated, are liable to an assessment for purposes of the ir- rigation district, and may be sold by the district for unpaid assessments thereon. City of San Diego v. Linda Vista Irr. Dist., 108 Cal. 189, 41 Pac. 291, 35 L. R. A. 33 (1895). The legislature may empower a city to make its pueblo lands liable for an assess- ment which is not imposed as a burden, but as its proportion of the expense in- curred to secure a local benefit, which, in contemplation of law, equals or exceeds the charge imposed. City of San Diego v. Linda Vista Irr. Dist., 108 Cal. 189, 41 Pac. 291, 35 L. R. A. 33 (1895). 5. Railroad Right of Way. Where a railroad » corporation owns a right of way and station grounds within the boundaries of a proposed irrigation district, and quietly sits by and makes no objection or protest to the organiza- tion of such district or the confirmation of the same, such railroad company is concluded by the action of the board of county commissioners in including such right of way and station grounds within the district and the judgment of the dis- trict court confirming such district, and cannot, in a collateral proceeding, attack the jurisdiction of the district to assess such lands on the ground that the same were not benefited. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). See ante III, D and J, 2, and IV, E, this note. The fact that the officials of an irri- gation district neglect to assess the right of way and station grounds of a railroad company for certain years is not a rea- son why such right of way and station grounds are not subject to assessment by said district; and the company cannot defeat a future assessment by reason of the fact that its property was not as- sessed for any particular year or years prior to the assessment made. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). The power and jurisdiction of the state board of equalization with refer- ence to the assessment of railroad prop- erty has reference to assessments made for general state, county, and municipal purposes, and not to assessments made for local improvements. Oregon Short Line R. Co. v. Pioneer Irr. Dist., 16 Idaho 578, 102 Pac. 904 (1909). 6. United States Lands. Although the expense of a local im- provement is usually borne by the re- 84 Watee and Mineeal Cases. [Idaho be advertised and sold in the event the assessment is not paid. The as- sessment can only be made upon property within the taxing district. We find, therefore, that the legislature has provided that only such portion of a railroad company's property as is situated within an irrigation dis- trict can be sold. As for a sale of a portion of a company's right of way being any more detrimental to the public interest than a sale of the gion benefited (see Chew v. Board of Comm'rs of Fremont County, 18 Colo. App. 162, 70 Pac. 764—1902), yet where an irrigation district which has been formed so as to include within its boun- daries lands belonging to the United States as a part of such irrigation dis- trict, the board of directors are not em- powered to levy an assessment upon such lands of the United States. Nevada Nat. Bank v. Poso Irr. Dist., 140 Cal. 344, 73 Pac. 1056 (1903). O. Sale of Land to Enforce Payment. 1. In California. Under the California Wright Act, the collector of an irrigation district has au- thority to sell the property in case of nonpayment of the assessment thereon levied by the board; but the sale by him in satisfaction of an amount directed by the court is unauthorized, and vests no title in the purchaser at such sale. Boskowitz v. Thompson, 144 Cal. 724, 78 Pac. 290 (1904). Where lands are sold to pay an assess- ment levied by an irrigation district by the collector of the district, and his right to that office is not called in question, the fact that, by reason of his residence, he might have been disqualified to be- come a de jure officer, will not invalidate the proceedings. Baxter v. Vineland Irr. Dist., 136 Cal. 185, sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). Where land under an irrigation dis- trict is sold for nonpayment of assess- ments, the fact that the sale was mad* to enforce the payment of two separate assessments, and the amount of each as- sessment was not separately stated in the notice of sale, or the certificate of sale, or in the deed, will not have the effect to avoid the proceedings. Best v. Wohlford, 153 Cal. 17, 94 Pac. 98 (1908). A sale of land to pay an assessment" levied by an irrigation district under the provisions of section 26 of the Wright Act (Cal. Stats. 1887, p. 37), which requires the sale to commence on the day fixed for sale, or on some subsequent day to which the collector may postpone the same, a sale noticed for February 22, and made on February 24, was held not invalid because noticed for a legal holiday. Baxter v. Vineland Irr. Dist., 136 Cal. 185, sub nom. Bax- ter v. Dickinson, 68 Pac. 601 (1902). 2. In Washington. Under the Washington District Irriga- tion Law ( 1 Ballinger's Ann. Codes & Stats., § 4192), the owner or person in possession of real estate offered for sale to pay assessments of a district due upon such land, may designate in writing to the secretary, prior to the sale, what portion of the property he wishes sold, if less than the whole; if the owner or possessor does not designate in writing or at all, the portion of the land to be sold to pay said assessments, it becomes the duty of the secretary of the irrigation district to so designate, but it is not necessary that the secretary file a sep- arate written paper, his recital in the records of the sale of the designation made by him thereat, will be sufficient. Rothchild v. Bellinger, 32 Wash. 307, 73 Pac. 367 (1903). See Doland v. Mooney, 79 Cal. 137, 21 Pac. 436 (1889); Hewes v. McLellan, 80 Cal. 393, 22 Pac. 287 (1889); Southworth v. Edmands, 152 Mass. 203, 25 N. E. 106, 9 L. E.. A. 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 85 whole, it is difficult to understand. We do not see how the railroad com- pany, not being the public itself and not being the representative of the public, can complain if a taxing district sells less than the whole line of its right of way. The purchaser would acquire the same rights as the railroad company held, and would be entitled to operate trains over the road the same as they were previously operated by the original company. 118 (1890) ; State v. Galloway, 44 N. J. L. (15 Vr.) 145 (1882). 3. Misnomer — Effect on Tax Deed. Under the California Wright Act, at assessment by an irrigation district, otherwise properly imposed upon the land, is not invalidated by a misnomei as to the owner thereof, and a tax deed on sale thereunder is not vitiated thereby. Escondido High School Dist. v, Escondido Seminary, 130 Cal. 128, 62 Pac 401 (1900). 4. Restraining Sale. In an action by a landowner to re- strain the sale of his lands to pay an assessment levied by an irrigation dis- trict to meet the annual interest on bonds of the district, his action is a col- lateral and not a direct attack upon the validity of the organization of the dis- trict and of the issue of the bonds- (Baxter v. Vineland Irr. Dist., 136 Cal. 185, sub nom. Baxter v. Dickinson, 68 Pac. 601—1902); and the holders of the bonds of the irrigation district may in- tervene on alleging that the defendant district is not defending in good faith ; but where holders of a portion only of the bonds intervene, the holders of the balance of the bonds not being parties to the action, no decree can be entered ad- judging such bonds invalid. Baxter v. Vineland Irr. Dist., 136 Cal. 185, sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). In such an action, the burden is upon the plaintiff to establish the illegality of the assessment, but this he cannot do by a minute book of the district showing a resolution calling for special election for the assessment, and a resolution showing that the returns of that election were canvassed and the result recorded, but not showing that a notice of the election was given. Baxter v. Vineland Irr. Dist., 136 Cal. 185, sub nom. Baxter v. Dickinson, 68 Pac. 601 (1902). P. Segregation of Fund. Where, under the California Wright Act, a special levy is made and a lump sum of money is raised for a specified purpose, the board of directors have no power to segregate this sum into sev- eral funds corresponding to the purposes specified, the whole sum being equally applicable to the payment of indebted- ness incurred for any of the purposes for which it is provided. Carter v. Tilgh- man, 119 Cal. 104, 51 Pac 34 (1897). A warrant in form made payable out" of a designated fund segregated by the board of directors from a lump sum raised by special tax is payable out of any funds accruing from said tax in the hands of the treasurer. Carter v. Tilgh- man, 119 Cal. 104, 51 Pac. 34 (1897); Higgins v. San Diego, 131 Cal. 294, 303, 63 Pac. 470 (1901). A warrant issued prior to the levying of a special tax to create a lump fund out of which to pay obligations of a specified kind of the district, is no objection to its payment where the indebtedness for which issued belongs to one of the classes specified. Carter v. Tilghman, 119 Cal. 114, 51 Pac. 34 (1S97). Q. Validity — District de Jure. On the validity of an assessment levied by an irrigation district does not depend for its validity on the de jure character of the corporation and it is immaterial whether the district be a district de jure 86 Water and Mineral Cases. [Idaho It makes no difference to the public whether one company or another is operating a railroad system. But this discussion of the sale of fragments and subdivisions of a railroad right of way for local assessments is purely theoretical and imaginary. It has almost uniformly arisen in cases where the company was seeking to prevent a sale. The cases are extremely difficult to find, as a matter of fact and in practice, where a or de facto. Quint v. Hoffman, 103 Cal. 506, 37 Pac. 514 (1894). VIM. Powers, Duties and Liabilities. A. The Powers of. Irrigation districts organized pursuant to any of the acts authorizing the crea- tion of such districts are purely creatures of the statute under which formed and have such powers and only such as are expressly granted by the statute or are impliedly necessary for the performance of the statutory duty of the districts. Willow Springs Irr. Dist. v. Wilson, 74 Neb. 269, 104 N. W. 165 (1905); Can- delaria v. Vallejos, 13 N. M. 146, 81 Pac. 589 (1905); Little Walla Walla Irr. Dist. v. Preston, 46 Or. 5, 78 Pac. 982 (1904). They cannot by contract limit their legality to public. See Colorado Canal Co. v. McFarlan, 15 Tex. Ct. Rep. 848, 94 S. W. 400 (1906). Compare Moore-Cortes Canal Co. v. Guile, 36 Tex. Civ. App. 442, 82 S. W. 350 (1904). The board of directors of an irrigation district, acting for the district, has juris- diction and can deal with matters affect- ing the district, as a whole only. Thus, it has been held that where an injunction was procured by a district, against par- ties within the district, restraining them from taking water from the ditches of the district, and this injunction was vio- lated, resulting in injury to all the land- owners entitled to water from the ditches of the district, a proceeding for con- tempt for violation of the injunction can not be maintained by the district, in the absence of proof of actual or special damages to the district as an organiza- tion separate and distinct from the rights of the landowners within the dis- trict. Thompson v. McFarland, 29 Utah 455, 82 Pac. 478 (1905). B. The Duties of. 1. Generally. The duties devolving upon an irriga- tion district are such as are imposed by law and necessary for the proper con- duct of the business for which the dis- trict is organized, and none other. Thus, it is the duty of the district to keep the canals in repair so as to carry water to the several consumers along the line thereof, and to turn the water to the consumers out of its main canals or laterals at such place or places as will be most convenient for the consumers, and will cause the least waste by sepage or extravagance. Niday v. Barker, 16 Idaho 73, 101 Pac. 254 (1909). Under the Idaho Law, an irrigation district is not required to construct and keep in repair at all times for public use bridges across their canals, flumes or water pipes, but is required to provide bridges across public streets and roads, where their canals or ditches are ex- tended across roads or streets already in existence. MacCammelly v. Pioneer Irr. Dist., 17 Idaho 415, 105 Pac. 1076 (1909). 2. To Supply Water. One of the duties of an irrigation dis- trict is to supply water to the land- owners within the district; but a refusal to pay for the use of water, according to the regulations of the district, is a breach on the part of the water-users entitling the district, in the absence of legally established rates, to sue for the reason- able value of the services rendered. Las- sen Irr. Co. v. Long (Cal., Dec. 24, 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 87 railroad company has suffered a sale either of its whole line or any por- tion thereof for a local assessment. The company that cannot pay a local assessment is not able to operate its road anyway, and a company that will not pay, after it has been judicially determined that it should do 1909), 106 Pac. 409. See De Prosse v. Royal Eagle Distilleries Co., 135 Cal. 408, 67 Pac. 502 (1902); Leavitt v. Lassen Irr. Co. (Cal., Dec. 24, 1909), 106 Pac. 404; South Boulder & R. C. Ditch Co. v. Marfell, 15 Colo. 302, 25 Pac. 504 (1890). Depriving a landowner within a dis- trict of water agreed upon and provided for his land, is a taking of his property without just compensation within the prohibition of section 14, art. I of the Idaho Constitution. Knowles v. New Swe- den Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). The right of a landowner of the dis- trict to the use of the water acquired by the district is a right to be exercised in consonance with and in furtherance of the ultimate purpose of the district, — namely, for the improvement by irriga- tion of lands within the district, — and in no other way. His right is always in subordination to the purpose of the trust. So far only as he proposes to use the water for the irrigation of lands within the district, can he be held to be the owner of any share or portion of the water. Jenison v. Redfield, 149 Cal. 500, 87 Pac. 62 (1906). Assignment of the right to the whole or any portion of a share of water a landowner within the district is entitled to, may be made, but the owner cannot make an effectual transfer of such share or part of a share free from the trust by which it is incumbered. It still re- mains subject to the trust, and for that reason can be used for the irrigation of lands within the district only. Jenison v. Redfield, 149 Cal. 500, 87 Pac. 62 (1906). This is thought not to be contrary to anything held in Modesto Irr. Dist. v. Tregea, 88 Cal. 334, 353, 26 Pac. 237 (1891). Under the Idaho Constitution (art. XV, § 4), a person cannot acquire a per- petual water right beyond the carrying capacity of the canal; and the aggregate rights of the users of water cannot ex- ceed the capacity of the canal; and any temporary deliveries of water at times when the prior users are not demanding the full amount of water to which they are entitled cannot be turned into a perpetual water right by the persons to whom such deliveries are made. Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 Pac. 80 (1908). The Idaho Session Laws 1899, p. 382, § 19, prohibit a water company from contracting to deliver more water than its canal will carry. Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 Pac. 80 (1908.) And under the section of the constitu- tion above referred to, providing for sale, rental, or distribution of water, and also providing that such sale, rental or distribution when once made shall be deemed an exclusive dedication to such use, it was not intended to compel a canal company that already had suffi- cient customers to use all the water the capacity of its canal would carry, to per- petually furnish water to anyone to whom it had furnished water at times when its regular customers did not re- quire it. Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 Pac. 80 (190S). Where an irrigation district, under the apportionment of benefits by reason of the purchase of a canal system, to the lands under it, classified the benefits under the heads of "old water" and "new water," the term "old water" refers to existing rights at the time of the pur- chase of the canal and "new water" re- fers to rights yet to be acquired by the enlargement of the canal, and no benefits under the head of "old water" were ap- 88 Watee and Mineeal Cases. [Idaho so and that it is legally bound to do so, ought to be put out of business and succeeded by one that is law-abiding. Fortunately, and to the credit of the railroad companies operating in this state, it has never been found portioned to the lands of those not al- ready receiving water; and where it ap- pears that the canal has not been enlarged so as to acquire any new water, and it does not appear that the canal company has water sufficient to supply the demands of a claimant without in- terfering with the use of private users, such claimant cannot acquire a perpetual water right by the temporary use of water from said canal at times when prior users are not demanding the full amount of water to which they are en- titled. Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 Pac. 80 (1908). Where a party is entitled to water from a ditch company, and does everything that the constitution and the laws of Idaho require him to do in order to get it, the company is bound to deliver the water to him, and cannot require him to sign a special contract binding him to do things which the law does not re- quire him to do in order to get the water. Green v. Byers, 16 Idaho 178, 101 Pac. 79 (1909). Where water has been delivered to land under a rental and distribution, and has been applied by the landowner under such rental for the purpose of raising crops, the right to its use becomes a dedication, under section 4, art. XV Idaho Constitution, and the user and con- sumer is entitled to the continued use thereof on payment of the water rates established in conformity with law. Ni- day v. Barker, 16 Idaho 73, 101 Pac 254 (1909). In an action to compel an irrigation company to furnish water to an applicant therefor, if the application be for land which had not previously been irrigated, then it is incumbent upon the applicant to allege and prove that the canal com- pany has water flowing through its canal to which prior appropriators are not entitled. Gerber v. Nampa & Merid- ian Irr. Dist., 16 Idaho 1, 100 Pac. 80 (1908). Where an irrigation company contract- ed with the owner of land for a right of way in consideration of which he was to have the privilege of purchasing water from it for the purposes of irrigation, and to which landowner the company supplied water for a term, but after- wards withdrew the same for the pur- pose of supplying it to others, mandamus will lie to compel the company to con- tinue to supply water. Merrill v. South- side Irr. Co., 112 Cal. 426, 44 Pac. 720 (1896). Where an irrigation company of a district wrongfully withholds from an individual who is entitled to water he may lawfully demand, the measure of damages is the value to plaintiff of the use of said right during the time he is deprived thereof, and it is not error to instruct the jury that the measure of plaintiff's recovery "is the value of the crop at the time the water was shut out of said canal, with the right to irrigate it from that time on to the end of the season, less the value of the crop, with- out the right to irrigate it from that time until the end of the season." Clague v. Tri-State Land Co. (Neb., May 21, 1909), 121 N. W. 570. An irrigation district cannot be re- quired to supply water to lands outside of the district; hence an assessed owner of lands, within an irrigation district entitled to the use of water, and as as- signee of the water right of another land- owner within the district, is not entitled to receive any portion of the water to which he is entitled, as landowner or as the assignee of another landowner, to be used upon lands situated outside of the district. Jenison v. Redfield, 149 Cal. 500, 87 Pac. 62 (1906). But where the district does sup- ply its surplus water for the irrigation 1909] Oregon Short Line R. Co. v. Pioneer Irrigation Dist. 89 necessary to actually make any such sale in Idaho for a local assess- ment. We discover no reason for granting a rehearing. Petition denied. STEWART, J., concurs. SULLIVAN, C. J., thinks a rehearing should be granted. of lands outside of the district, it will be entitled to shut off this supply when- ever the landowners within the district require all of the water flowing in the district for the purpose of irrigating their lands. Gerber v. N'ampa & Meridian Irr. Dist., 16 Idaho 1, 100 Pac. 80 11908). The fact that the district does sup- ply water to lands outside of the district will not affect the validity of the organ- ization of the district or of the bond* issued thereby. Settlers' Irr. Dist. v. Settlers' Canal Co., 14 Idaho 504, 94 Pac. 829 (190S). C. The Liabilities of. 1. Generally. An irrigation district has *11 the liabilities incident to a corporation of its character and such general liabilities as are fixed by law. Thus, where an irrigation district purchases water rights, ditches and a canal system, it takes them subject to all duties and burdens of which it has notice and which existed against the grantor. Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 Pac. 81 (1908). The district is liable for benefits ac- cruing to the district for work and labor done within the district upon its system of canals, etc., which has been done by a contractor and for which bonds have been issued in payment; and this liability is separate and independent from its liability upon the bonds. Hughson v. Crane, 115 Cal. 404, 47 Pac. 120 (1896). Where a contract is entered into which a board of directors of an irrigation dis- trict is authorized by law to make, and the district has received the benefits of the contract, it will be liable for the reasonable value of the services render- ed, not exceeding the contract price, not- withstanding the fact that the contract was illegal because of the manner in which it was entered into. Lincoln & Dawson County Irr. Dist. v. McNeal, 60 Neb. 621, 83 N. W. 847 (1900). 2. To Be Sued. An irrigation district has the right to sue and also the liability to be sued, and on judgments recovered thereunder. Mil- ler v. Perris Irr. Dist., 85 Fed. 693 (1898); Board of Directors of River- side County v. Thompson, 122 Fed. 860 (1903) ; Boehmer v. Big Rock Irr. Dist., 117 Cal. 19, 48 Pac. 908 (1897) ; Hewitt v. San Jacinto & P. V. Irr. Dist., 124 Cal. 186, 56 Pac. 893 (1899). Where an irrigation district has been sued and judgment recovered against it, such judgment will be conclusive against not only the parties before the court but also against the property owners o/ the district and all parties who may thereafter be called upon to enforce the judgment therein rendered, as to all ques- tions which were or might have been liti- gated in action. Board of Directors of Riverside County v. Thompson, 122 Fed. 860 (1903). But in California, the prop- erty of an irrigation district is exempt from sale on execution (see ante I, H, 2, this note) and the only method by which the judgment can be enforced is by man- damus to compel the levy of an assess- ment upon the property within the dis- trict to pay the judgment. See ante VI, K, 2, b, this note. 3. As a Nuisance. An irrigation ditch or canal construct- ed and maintained under the authority of law governing the organization and conduct of irrigation districts, cannot be deemed or declared to be a nuisance. Mac- Cammelly v. Pioneer Irr. Dist., 17 Idaho 415, 105 Pac. 176 (1909). 90 Water and Mineral Cases. [Oregon WASHBURN v. INTER-MOUNTAIN MINING CO. [Supreme Court of Oregon, June 28, 1910.] — Or. — , 109 Pac. 382. 1. Conditional Sale Distinguished from Chattel Mortgage. Agreement that party does sell, assign, transfer and set over to another a certain quartz mill, providing that until the entire purchase price be paid, title shall remain in the seller, is a conditional sale and not a chattel mortgage, although it be provided that the seller may, at his option, enter upon and take possession of the mill, etc., and sell the same in case of default, crediting the proceeds after deducting expenses. 2. Conditional Sale — Fixtures — Effect of Agreement as to Title. Where mill is sold under condition that the title shall not pass until fully paid for, it remains personal property as between the seller and buyer although it be affixed to the realty. 3. Same — Subject to Lien. Mill sold under condition that title shall not pass until fully paid for, affixed to the realty, becomes a fixture as to laborers without notice and is subject to their liens. 4. Same — Agreement as to Title — Effect on Third Parties. Mill affixed to soil under conditional sale is, as to third parties without notice, a fixture and will be treated as such so far as rights of third parties are con- cerned. 5. Miners' Liens — Contents of Notice. It is not necessary that lien notice state or proof show that labor for which lien is claimed was done on the mill or building to subject them to the lien. 6. Same — What Property Affected. Reference to "roads, tramways, flumes, ditches and pipe lines," etc., in § 5668, B. & C. Comp. as amended in 1907, includes such appurtenances when not situated upon the mine, as those upon the mine are part of the realty and need not be specially mentioned. 7. Same — Mill and Mill Site Included. Use of term "upon any mill site or mill used, owned or operated in con- nection with such mine" in § 5668, B. & C. Comp. prior to amendment of 1907, had reference to such mill site and mill not situated upon the mine, and the sec- tion as amended necessarily includes mill site and mill situated upon the mine. 8. Same — Right of Foreman to Lien. Foreman of mine, who did general work, helped on different things, framed timbers and looked after the work, is entitled to a miner's lien. 9. Corporations — Effect of Knowledge of President and Manager. A corporation is presumed to know the terms of an agreement made by its president and manager for its benefit. 10. Same — Knowledge of Director. To affect a director of a corporation individually, knowledge must be brought home to him and he is not presumed to know the terms of an agreement made by the president and manager of the corporation. 1910] Washburn- v. Inter-Mountain Mining Co. 91 11. Miners' Liens — Evidence to Sustain. Evidence of one who employed men, directed their work, kept their time and ■was bookkeeper of the mine, that the claimants worked extracting ores and breaking ground in different places on the property, giving the whole amount due and the amounts paid the laborers, is prima facie sufficient to sustain a lien. 12. Same — Marshaling Assets to Satisfy. It is only when there are two properties that the doctrine of marshaling securities can be invoked and it cannot be invoked where mines and mills con- stitute one property, and neither can be sold separately without a depreciation in value of the other. Action to foreclose miners' liens, upon mines and mill in which it was contended that the mill, being subject of a conditional sale, was not sub- ject to the liens. Judgment for plaintiff. Affirmed. This is a suit to foreclose miners' liens. The defendant Inter-Mountain Mining Company was the owner of fourteen mining claims in Baker county, Or. W. L. Vinson, at the time of the acts complained of in the answer of Flack, was its president and manager. Between May, 1908, and June 14, 1909, plaintiff and the twenty other lien claimants mentioned in the complaint, under employment of the defendant company, performed labor upon the said mines, as a group, in constructing tunnels and perform- ing other work for the development thereof, in search for gold. Upon the latter date, at suit of C. E. Bond, Robert D. Carter was appointed a receiver for defendant company, and thereupon took possession of the mines. Thereafter on June 23, 1909, the lien claimants filed in the office of the county clerk of Baker county, Or., notices of their liens upon the mines for such labor, under the provisions of section 5668, B. & C. Comp., as amended by the Laws of 1907, p. 293. Thereafter each of the other lien claimants assigned his claim to plaintiff, who, on July 30, 1909, brought this suit to foreclose the same. The defendant corporation and the receiver made no defense to the suit. Defendant Bond answered, CASE NOTE. Miners' Liens on Property, Held Under Contract of Conditional Sale. Where a chattel such as a quartz mill is purchased under agreement that the title shall not pass until the full pur- chase price is paid, and which chattel is thereafter affixed to the land, the agree- ment amounts to a stipulation that as be- tween the parties it should remain per- sonalty until the price was fully paid. But when the chattel is affixed to the soil, the situation is changed as to the rights of third parties who are without notice of the terms of the agreement. Wash- burn v. Inter-Mountain Min. Co., prin- cipal case. The rule that a conditional sale of a chattel is valid as well against third parties as against the parties to the transaction, relates to parties dealing with the property as a chattel and does not apply to third parties without no- tice of the condition, where the character of the property has been changed to realty by being affixed to the soil, and 92 Water and Mineral Cases. [Oregon alleging a laborer's lien, which was disallowed by the trial court, and he does not appeal. The defendant Flack answered, and besides denials, al- leges affirmatively, that the twenty-stamp (quartz) mill, situated upon the mines, is personal property of which he is the owner. He asks that the court adjudge that it is not subject to the liens of plaintiff; and that the receiver be directed to release it to him, his contention being, that on May 2, 1908, he was the owner thereof, it being situated in Malheur County, Or.; and that on that day he entered into an agreement with W. L. Vinson for the sale of it to him in the following words (omitting the preliminary statement and signatures) viz.: "Now, therefore, in con- sideration of the sum of one thousand dollars ($1,000) in hand paid by the party of the second part to the party of the first part, the receipt whereof is hereby acknowledged and confessed, the said party of the first part has this day sold, assigned and disposed of and by these pres- ents does hereby sell, assign, transfer and set over unto the said party of the second part the said mill consisting of one (1) twenty-stamp mill including building and all machinery, dies, tools and appurtenances thereunto belonging, except the dwelling house, blacksmith shop, two ore cars and three hundred feet of rails, upon the following terms and con- ditions, to wit: First. The said party of the second part hereby prom- ises and agrees to remove said mill, building, machinery, tools and appur- tenances unto property owned by him situated near the Rainbow mine, in the county of Baker and state of Oregon, as soon as may be hereafter, and to do all of said work free of charge to the party of the first part. Second. The said party of the second part hereby promises and agrees to pay to the said party of the first part the further sum of nine thousand dollars ($9,000) according to the terms and conditions of one certain promissory note bearing even date herewith, executed by the said party of the second part to the party of the first part as the balance of the pur- chase price of said mill and machinery, and that until the entire purchase therefore, where a mill was delivered to a mining company under an agree- ment amounting to a conditional sale, but was attached to the realty so as to become a fixture, the mining company became, as to laborers without notice, the owner of the mill, and it with the mine became subject to liens of the la- borers. Washburn v. Inter-Mountain Min. Co., principal case. Where certain machinery, etc., was bought for use in a mine under contract providing that the title should not pass until the purchase price was fully paid, which machinery, etc., was delivered at the mine but part of it was never set up or affixed to the premises, it was held that the part not set up or affixed to the mine was not liable for miners' or mechanics' liens. The lien was sustained as to that part which was set up and affixed. Hamilton v. Delhi Mining Co., 118 Cal. 148, 50 Pac. 378 (1897). Machinery purchased by one in pos- session of a mining claim under a con- tract to purchase the same, providing that if he failed to fulfil the contract, he could remove any machinery, etc., 1910] Washburn v. Inter-Mountain Mining Co. 93 price shall have been paid, the title to the said mill and all machinery hereinbefore described shall be and remain in the party of the first part. Third. Upon the payment to the said party of the first part of the entire purchase price of said property, he hereby promises and agrees to satisfy and release unto the said party of the second part all claim, right and title in and to said mill and machinery. Fourth. It is further under- stood and mutually agreed by and between the parties hereto that time is of the essence of this contract, and that for any failure on the part of the party of the second part to make the aforesaid payments in accord- ance with the aforesaid promissory note, the said party of the first part may, at his option, enter upon and take possession of the aforesaid mill, machinery, tools and appurtenances, together with all improvements made thereon, either with or without process of law, and to sell the same either at private or public sale, after having given ten (10) days' written notice thereof by publication or otherwise, and to indorse upon said note after the payment of all expenses the money remaining from the sale thereof, it being distinctly understood that the party of the first part may, at his option, regard this merely as an option to purchase. Fifth. It is further understood and mutually agreed by and between the parties hereto that the covenants, stipulations and agreements herein contained shall be binding alike upon heirs, executors, administrators and assigns of the parties hereto as upon the parties themselves." In July, 1908, the mill and buildings were moved by defendant com- pany to the mines for the operation thereof and erected thereon, being permanently affixed to the soil. Additions were also made to the ma- chinery and buildings at the same time, viz. : an engine, dynamo, concen- trator, shafts, pulleys, etc., which were also permanently affixed to the soil, and in the month of February, 1909, Vinson duly assigned such affixed by him to the claim by agree- ment of conditional sale whereby the title was not to pass until full payment made, is not subject to laborer's lien, although it was affixed to the realty. Jordan v. Myres, 126 Cal. 565, 58 Pac. 1061 (1899). The lessors (so called) of machinery to be used in mine whereby they agree to transfer title upon payment of a eertain amount, are not required to give notice required by Civil Code Pro- cedure, § 1192, providing for notice of nonliability for work, etc. (but see amendment of 1907, Kerr's Bien. Supp.) Jordan v. Myres, 126 Cal. 565, 58 Pac. 1061 (1899). When a chattel which was sold for that purpose has been affixed to the soil, the party dealing with reference to the realty upon which the chattel is situated without notice of a reservation of title in the agreement, will not be affected thereby, but as to him the chattel will be treated as a fixture. Hershberger v. Johnson, 37 Or. 109, 60 Pac. 838 (1900). Where under agreement for the pur- chase of a mine and mill under the terms 94 Watee and Mineral Cases. [Oregon agreement to the defendant company. Upon the trial a decree was ren- dered in favor of plaintiff. Defendant Flack appeals. For appellant — A. D. Clifford. For appellee — Gustav Anderson. EAKIN, J. (after stating the facts as above). The first question for determination is whether the agreement between Flack and Vinson is a conditional sale or a chattel mortgage, and this must be ascertained from the intention of the parties as gathered from the language of the agreement. It recites that the first party "does hereby sell, assign, trans- fer, and set over unto the said party of the second part," etc. But it provides that, "until the entire purchase price shall have been paid, the title to the said mill and all machinery hereinbefore described shall be and remain in the party of the first part," clearly indicating a conditional sale. Such has been the holding of this court in several cases : Singer M. Co. v. Graham, 8 Or. 17, 34 Am. Rep. 572; Herring-Marvin Co. v. Smith, 43 Or. 315, 72 Pac. 704, 73 Pac. 340. The further stipulation in the agreement that "the said party of the first part may, at his option, enter upon and take possession of the aforesaid mill, machinery, tools, and appurtenances, together with all improvements made thereon, either with or without process of law, and to sell the same either at private or public sale * * * and to indorse upon said note after the pay- ment of all expenses the money remaining from the sale thereof" does not constitute it a chattel mortgage, as the plain intention of the parties was that the vendor shall retain the title. Freed Furniture & Carpet Company v. Sorensen, 28 Utah 419, 79 Pac. 564, 107 Am. St. Rep. 731. Also, see note to this case in 3 Am. & Eng. Ann. Cas. 639. And as the mill was purchased by Vinson for the defendant corporation, for the operation of these mines, the title thereto remained in Flack as against both Vinson and the defendant company. And this is the result even though the chattel be permanently affixed to the freehold, the agreement being permitted to control. It is held in Alberson v. Elk Creek Min- ing Company, 39 Or. 552, 65 Pac. 978, that "Laterally, the strict rule that whatsoever is affixed to the soil partakes of the nature and becomes a part of the realty itself, has been much relaxed to meet the require- of which the proposed purchaser was to take possession and any and all machin- ery and tools put upon or used in the mill or mine should become the property of the owners in case the proposed pur- chaser did not complete his purchase, it was held that one who furnished the machinery to the proposed purchaser un- der agreement that title should not vest until it was paid for, knowing that it was to be affixed to the mine, but not knowing the terms of the contract as to the ownership of improvements in case of default could recover machinery where the proposed purchaser failed to pay for the machinery and defaulted in the 1910] Washbtjkn v. Intek-Mountain Mining Co. 95 merits of manufacturing industries and trade relations, so that now the question whether an article of personalty in its original state has become a part of the freehold depends upon three conditions : Annexation, real or constructive ; adaptability to the use or purpose of the realty to which it is attached; and the intention of the party making the annexation to make it a permanent accession to the freehold." No doubt it was the intention of both Vinson and the defendant com- pany to make the building and mill a permanent accession to the free- hold. But the agreement amounts to a stipulation that, as between the parties to the agreement, it should remain personalty until the price was fully paid. Landigan v. Mayer, 32 Or. 245, 51 Pac. 649, 67 Am. St. Rep. 521 ; Hershberger v. Johnson, 37 Or. 109, 60 Pac. 838. However, when the mill is affixed to the soil, the situation is changed as to the rights of third parties who are without notice of the terms of the agree- ment. When the chattel, which was sold for that purpose, has been affixed to the soil, a party dealing with reference to the realty upon which the mill is situated, without notice of the reservation in the agreement, will not be affected thereby ; but, as to him, the mill will be treated as a fixture. The reason for this rule is that to hold otherwise would ren- der uncertain land titles, endanger the rights of purchasers, and afford opportunities for fraud. The condition of the agreement, being unre- corded, is in the nature of a secret lien, which is contrary to the policy of our law. This rule is laid down by this court in Muir v. Jones, 23 Or. 332, 31 Pac. 646, 19 L. R. A. 441, where it was urged, as here, that the vendee of the chattel could invest the plaintiff with no better title than he himself had. Mr. Chief Justice Lord says: "We are unable to subscribe to this doctrine" and holds that while by agreement barns or other structures so attached to the soil as to become part of the realty, may be made to remain personal property, yet the general course of de- cisions is that a purchaser of land on which such fixtures are located must have notice of such agreement or he will be entitled to hold them as part of the realty. To the same effect, see Landigan v. Mayer, 32 Or. 245, 51 Pac. 649, 67 Am. St. Rep. 521 ; Union B. & T. Co. v. Wolf Co., 114 Tenn. 255, 86 S. W. 310, 108 Am. St. Rep. 903, and note to the latter case in 4 Am. & Eng. Anm Cas. 1073, where the authorities are reviewed. It is true, as stated by counsel for defendant, that an agreement for the conditional sale of a chattel is valid as well against third parties as against the parties to the transaction. Singer M. Co. v. Graham, 8 Or. 17, 34 Am. Rep. 572. But that rule relates to parties dealing for the agreement to purchase. Hendy v. Dinker- hoff, 57 Cal. 3, 40 Am. Rep. 107 (1880). As to machinery, pumps, etc., of oil wells being trade fixtures and removable as such, see note to Perry v. Acme Oil Co., p. 99, vol. 1, this series. 96 Water and Mineral Cases. [Oregon property as a chattel, and does not apply to third parties without notice of the condition, where the character of the property has been changed to realty by being affixed to the soil. Also, as defendant contends, a mechanic's lien claimant must connect himself with the owner of the property. But Flack has no interest in the realty, nor does the lien reach the personalty, and, as to the laborers without notice, the defendant company was the owner. It is not necessary that the lien notice shall state or the proof show that the labor for which the lien is claimed was done on the mill or building to subject them to the lien. Section 5668, B. & C. Comp., as amended (Laws 1907, p. 294) provides: "That when two or more mines * * * are claimed by the same person or persons and worked through a common shaft or tunnel * * * or at one mill, or other reduction works, then all the mines * * * and all roads, tramways, trails, flumes, ditches or pipe lines, buildings, structures or superstruc- tures used or owned in connection therewith shall, for the purposes of this act, be deemed one mine." The reference in this language to "roads, tramways, flumes, ditches, and pipe lines," etc., includes such appur- tenances when not situated upon the mine, as those upon the mine are part of the realty and need not be specially mentioned. And so the use of the term "upon any millsite or mill used, owned, or operated in connection with such mine," in section 5668, prior to the amendment of 1907, had reference to such millsite and mill not situated upon the mine, as is further shown by the subsequent language of that section. There- fore, the section as amended necessarily includes the millsite and mill situated upon the mine without being specially named. It is further contended by defendant that the decision in Durkheimer v. Copperopolis Copper Co., 104 Pac. 895, precludes recovery by plain- tiff Washburn upon his individual lien, for the reason that he was super- intendent and manager of the defendant company. But the evidence does not disclose that he was superintendent or manager of defendant company. On the contrary, he testifies that he was foreman and did general work, helped on different things, made things, framed timbers, and looked after the work. On cross-examination he says his business was foreman and to see that the work was done in different places ; that he framed timbers ; helped the men ; did this, that, and the other, to help the thing along; and that he took part in the erection of the mill. His employment comes directly within the holding in Flagstaff v. Cul- lins, 104 U. S. 176, 26 L. Ed. 704, that "he was the overseer and foreman As to mechanic's liens on gas and oil wells, see note to Phillips v. Spring- field Crude Oil Co., p. — , vol. 2, this series. As to for what services mechanics' liens are allowed on mines, see note to Gray v. New Mexico Pumice Stone Co., p. 157, this volume. 1910] Washburn v. Inter-Mountain Mining Co. 97 of the body of the miners who performed manual labor upon the mine. He planned and personally superintended and directed the work. * * * His duties were similar to those of the foreman of a gang of track hands upon a railroad, or a force of mechanics engaged in building a house." This language is quoted with approval in Durkheimer v. Copperopolis Company, and distinguishes the case we are considering from the latter. It is also urged by defendant that Washburn must be presumed to know the terms of the agreement between Flack and Vinson as he was an officer and director of the defendant company. No doubt, the defendant company is presumed to know the terms of that agreement because its president and manager had notice and it was made for its benefit. Thompson on Corp. (2d Ed.), § 1673; § 1668. But not so as to Washburn, although he was a director. To affect him individually, knowledge must be brought home to him. He denies any knowledge that the sale was conditional, and there is no evidence that shows he had notice thereof. The statement in Holly Mfg. Co. v. New Chester Water Company (C. C), 48 Fed. 889, that "it appears that some of the directors had positive knowledge of the terms of the contract with the Holly Company and, under the circumstances, notice thereof is to be imputed to them all," only means all as constituting the corporation and is not authority for holding that, in an individual mat- ter, a director is charged with notice because the corporation is presumed to have notice on account of notice to another director. It is said in Peckham v. Hendren, j6 Ind. 47, that knowledge is imput- able to a corporation by the acts of its agent, but will not be imputed to an officer thereof in a transaction between him and the corporation in which he is acting for himself and not for it. To the same effect is Cook on Stock and Stockholders, § 727; Cook on Corp., § 727; Rudd v. Robinson, 126 N. Y. 113, 26 N. E. 1046, 12 L. R. A. 473, 22 Am. St. Rep. 816. It is urged that there is no evidence as to the kind of work or where it was performed by the claimants, or that the claims were not paid. But it appears from the evidence that Washburn employed the men, directed the work, kept their time, and was bookkeeper. He tes- tifies, as to King, that he worked in the mine, extracting ores and break- ing ground in different places on the property described in the com- plaint ; gives the amount of his whole bill and says that he was not paid in full; that he has a balance due him of $87.80; that the total amount paid him was $59.75. Similar evidence is given as to each claimant, and is, at least, prima facie sufficient to sustain the lien. Defendant also contends that the plaintiff should be required to take satisfaction first by sale of the mines, in which Flack has no interest, and leave the mill for the satisfaction of defendant's claim, if the mines sell for sufficient to satisfy the plaintiff's claims. This is the rule where there are two W. "& M.— 7 98 Water and Mineral Cases. [Oregon separate and distinct properties and they can be sold separately without depreciation of either. But the mines and mill constitute one property and neither can be sold separately without a depreciation in value of the other. It is only when there are two funds or properties that the doctrine of marshaling securities can be invoked. Neither is this relief suggested by the pleadings nor asked in the prayer of the answer. The facts, however, may be sufficient to entitle defendant Flack to be subro- gated to the equities of the plaintiff upon the sale of the property or other stage of the proceeding, if such relief is sought. We find no error in the rulings of the trial court. The decree is af- firmed. 1909] Perry v. Acme Oil Company. 99 PERRY v. ACME OIL COMPANY. [Appellate Court of Indiana. Division No. 2, June 22, 1909.] 44 Ind. App. 207, 88 N. E. 859. 1. Appellate Practice — Waiver of Error. Assignments of error not discussed in appellant's brief will be deemed to be waived. 2. Pleading — General Denial. Under general denial it may be shown that plaintiff has no title to the property for the conversion of which the action is brought, but that title thereto is in defendant. 3. Oil Lease — Uncertainty in Description. A deed to prospect for oil and gas which does not specifically define the land granted is not void for uncertainty, but within certain limits gives the grantee the right to select the land, to the amount granted, upon which he may prospect. 4. Same — Right of Removal of Fixtures. Machinery and fixtures placed on real estate leased for the purpose of drill- ing for gas and oil do not become permanent fixtures or part of the freehold, and the title thereto does not vest in the lessor upon a forfeiture of the lease. 5. Same — Expiration of Term — Removal of Fixtures. Where the right to remove property "at any time" has been expressly reserv- ed in an oil lease, such right is not unlimited as to time, but is limited to a reasonable time after the expiration of the lease. 6. Same — Forfeiture at Option of Lessor. The forfeiture clause in an oil lease is for the benefit of the lessor, and he may avail himself of it or not as he sees fit. If he does not declare a forfeiture, the lease remains in force, and the lessee may enter upon the leased premises. CASE NOTE. Machinery, Pumps, etc., for Drilling Gas and Oil Wells Are Trade Fix- tures and Removable by Lessee. I. In General, 99. II. Where Lease is Forfeited, 103. III. Question of Agreement or Intent, 104. I. In General. Where under provision of the lease, machinery must stay upon the ground until all royalties are paid, but giving right of removal after payment of royal- ties, the machinery does not lose its character as a removable fixture, and the only interest the lessors have therein is a lien for unpaid royalty. Cherokee Construction Co. v. Bishop, 86 Ark. 489, 112 S. W. 189, 126 Am. St. Rep. 109S (1908). Machinery and fixtures placed on real estate leased for the purpose of drilling for gas and oil do not become permanent fixtures or parts of the freehold by reason of such annexation as is neces- sary to develop the premises according to the terms of the lease, and title to such machinery and fixtures does not vest in the lessor because of a forfeiture of the lease. Perry v. Acme Oil Co., principal case. 100 Water and Mineral Cases. [Indiana Action to recover value of certain oil-well fixtures and machinery. Judgment for plaintiff. Affirmed. For appellants — Mack & Son and Jay A. Hurdman. For appellee — Joseph S. Dailey, Abram Simmons and Frank C. Dailey. WATSON, J. This was an action brought by the appellee against appellants to recover the value of certain oil-well fixtures and machinery alleged to have been converted by appellants to their own use. To the complaint appellant the King Oil Company filed a general denial. Appellant Perry answered in two paragraphs — first, general denial ; sec- ond, affirmative matter in avoidance of the contract. The issues were made upon the complaint and separate general denials of each of the appellants. The cause was tried before a jury. A verdict for appellee was returned in the sum of $800. Each appellant moved for a new trial, but the motions were overruled and judgment rendered on the verdict. Under a gas lease giving lessee the right to remove fixtures, but also pro- viding that if lessee abandoned the lease while there was a flowing well upon the premises, the same should be left in con- dition to be used by the lessor, the lessee, upon abandonment, cannot remove the casing, pipe, etc., where the result would be the cutting off of the supply of gas to the lessor. Ohio Oil Co. v. Griest, 30 Ind. App. 84, 65 N. E. 534 (1902). Machinery in a drill house for the temporary purpose of boring a salt well, and removable without injuring the free- hold, is not a fixture, and does not pass by a conveyance of the land. Bewick v. Fletcher, 41 Mich. 625, 6 Mor. Min. Eep. 117, 3 N. W. 162, 32 Am. Rep. 170 (1879). Where a party having the right to remove a derrick and boring machinery removed parts and was preparing to re- move the rest, when, upon the landlord's objecting to the removal, a contract was signed whereby the party removing the property promised to return and replace it in the same condition after he had used it elsewhere, if permitted to re- move it, it was held that he was not by such contract estopped from claiming title and the right of possession of the property; that the promise to put it back was no relinquishment of right and no recognition of any title in the land- lord; that, as the landlord had no title or right of possession to the property, the agreement was without consideration, and not binding upon the lessee. Bewick v. Fletcher, 41 Mich. 625, 6 Mor. Min. Rep. 117, 3 N. W. 162, 32 Am. Rep. 170 (1879). While there are certain general prin- ciples applicable to cases arising between landlord and tenant, as to what annex- ations are removable and what are not, yet each case must in a great measure depend upon its own peculiar circum- stances and the intention of the parties, and the time and manner of making the annexation, which will be of controlling influence in the correct disposition of the question. Conrad v. Saginaw Min. Co., 54 Mich. 249, 52 Am. Rep. 817 (1884). Under a lease conferring exclusive right to produce oil and gas, permitting the lessee to go upon the land to make necessary erections, etc., with the right to remove any and all tools, boilers, en- gines, and all casings to the wells and drive-pipe if the lessor should refuse to pay a fair price therefor, it was held 1909] Perry v. Acme Oil Company. 101 The only assignments of errors discussed by appellants in their brief are, first, sustaining the demurrer to appellant Perry's second paragraph of answer ; and, second, the refusal by the court to give instructions No. 2 and No. J requested by Perry. The other assignments of error are therefore deemed to be waived. Hamilton v. Hanneman, 20 Ind. App. 16, 50 N. E. 43; Hoover v. Weesner, 147 Ind. 510, 45 N. E. 650, 46 N. E. 905 ; Ewbank, Appellate Practice, § 188. The complaint is in one paragraph, and alleges the corporate existence of the appellee and the appellant, the King Oil Company, under the laws of the state of Indiana. It further avers that on the 26th day of Sep- tember, 1899, William M. Perry and wife executed and delivered to the appellee an oil and gas lease and contract whereby the Perrys granted to appellee one hundred acres in Wells county, Ind., for the purpose of drilling and operating for gas and oil, with full right to enter there- on and erect and maintain necessary buildings. Appellee avers that it entered upon said land in pursuance of said contract, and took posses- that those articles retained their charac- ter of personalty after annexation to the land, and as such were subject to mortgage and conveyance by the lessee. Kribbs v. Alford, 120 N. Y. 519, 24 N. E. 811 (1890). The. tubing, casing, and drive-pipe of a gas or oil well are trade fixtures, and in regard to such oil and gas leases are not governed by the same rules as apply to agricultural leases. They may be re- moved at any time before the expiration of the lease or when the lease has been abandoned, the land producing neither gas or oil. Silver v. Globe Window Glass Co., 21 Ohio Cir. Ct. R. 284, 11 Ohio Cir. Dec. 784 (1900). In Shellar v. Shivers, 171 Pa. St. 569, IS Mor. Min. Rep. 200, 33 Atl. 95 (1895), Mcllvaine, P. J., in court below, said: "I do not think there can be any doubt that the casing in an oil or gas well, the derrick, and other appliances used in drilling and operating it, are trade fix- tures, and can be removed by the owner or lessee during the term of the lease. On the other hand, I think there can be no doubt that they are such fixtures, that they become the property of the landowner, if not removed by the lessee during the term, or at least within a reasonable time after its expiration. These two propositions are both, of course, subject to modification by the agreement of the parties. Are they modi- fied in this case? Because, if they are not, then the defendants had no right to enter upon the plaintiff's land for the purpose of removing the fixtures in question. The lease provides that the lessee shall have 'the right to remove, at any time, any or all machinery,' etc, It is claimed that the words 'at any time' must be given their fullest meaning, and that the defendants' right to remove these fixtures, by agreement of the lessor, was unlimited as to time, and that al- though their entry to remove the casing was made four years after the lease ex- pired, and five years and six months after the well was completed and found to be of no use as an oil or gas well, yet their entry and purpose were lawful as they had the right to remove any or all fixtures at any time. We think that this was not the intention of the parties, as gathered from the language of the lease. The lease was for a fixed period, to be extended to an indefinite period, and the extension to depend upon what the fu- ture might develop. The right to enter at any time, and the right to remove 102 Water and Mineral Cases. [Indiana sion thereof for the purpose above set out, and drilled and completed two wells thereon, and equipped said wells with casings and drive pipe to the value of $928.30, and that appellants took possession of said wells, casing, drive pipe, and other materials, and wrongfully and unlawfully converted them to their own use. To this complaint appellants filed separate demurrers, but no rulings were had thereon. Appellant the King Oil Company then filed its separate answer in general denial, and William M. Perry filed his separate answer in two paragraphs — first, general denial; second, admitting that he and his wife executed said contract as set out in the complaint, and further averring that appellee submitted a blank printed form of contract for him and his wife to execute, which contained, among other provisions, the following: "The second party shall have the right, free of charge, to use sufficient gas, oil, and water to run all machinery for operating said well, also the right to remove all property at any time." That there was inserted therein in writing a provision as follows : "It is further agreed by second party machinery at any time, was predicated of that part of the term that was uncer- tain; that is, after three years the lessee had the right, at any time, to enter and drill additional wells, if oil or gas was being produced in paying quantities, and had the right, although the three years had passed, to remove the machinery and fixtures after or when the well should cease to produce oil or gas in paying quantities. If this construction is correct then the rule of law as to re- moval of fixtures would be as in cases where the tenancy is uncertain in dura- tion, as when it depends upon a con- tingency, and that is that the removal must be made within a reasonable time, or, in other words, the law in such cases allows the tenant a reasonable time for the removal of fixtures. Here the lessees, if oil or gas had been found in paying quantities, would have had a reasonable time within which to draw their casing and remove their derricks after it had become apparent that the operation of the wells was no longer profitable, let this be soon or long after the expiration of the three years. At any time when they thought it would no longer pay to operate their wells, which had been producing oil or gas in paying quantities, they had a right to remove the fixtures connected with such wells. Under the facts as we have them in this case, how- ever, operations ceased on this lease in April, 1887. A dry hole was found. Nothing was done between the comple- tion of this well and the time when the lease expired, in November, 1888; and after that four years are allowed to ex- pire before an attempt to remove these fixtures was made. In our opinion, this was too late. If, under the words 'at any time,' the lessee could take four years after the expiration of the lease to remove his fixtures, he could as well take twenty years. To say that the lessor could prevent this by giving notice that the fixtures must be moved within a certain time is to read something into the contract that is not there." The landlord under a gas and oil lease does not acquire title to personal prop- erty of lessee left on the premises, by judgment in ejectment. Sattler v. Op- perman, 14 Pa. Sup. Ct. 32 (1900). Under lease for purposes of exploring for gas and oil, engine, wooden oil-well rig, wooden oil tanks, casings, pipes, belting, and articles of like character, 1909] Perry v. Acme Oil Company. 103 that when they fail to operate any one well for a period of sixty days, or pay first party one dollar per day from the time they fail to operate said well, the ten acres on which said well is located shall be canceled and returned to first party. Second party shall have the right to re- move their machinery from the said ten acres." And that appellee on the 12th day of December, 1902, ceased to operate said two wells, and wholly abandoned the premises, and removed therefrom all of its ma- chinery, and so remained therefrom thereafter. That on the 15th day of April, 1903, he took possession of said wells, casing, and drive pipe, and employed his codefendant to operate the wells. Appellant further avers that he did not appropriate to his own use any machinery belonging to the appellee, but only property which was attached to and formed part of the real estate and which could not be removed therefrom without damage. To this second paragraph of answer appellee filed a demurrer which was sustained by the trial court and proper exceptions reserved as to the ruling thereon. Under his answer of general denial, appellant necessary in the prosecution of the work, do not become permanent fixtures, and are removable by the lessee. Gartland v. Hickman, 56 W. Va. 49, 49 S. E. 14, 67 L. R, A. 694 (1904). II. Where Lease Is Forfeited. A tenant has the same right of removal of fixtures where, after the expiration of the lease he remains in possession as a tenant at will, as he had during the term. Brown v. Reno Electric L. & P. Co., 55 Fed. 229 (1893). The rule that a lessee must remove his fixtures during the term does not ap- ply where a lease is forfeited, for in such case, the term is not closed by the act of a tenant, and he should have a reasonable time thereafter within which to remove his fixtures. Updegraff v. Lesem, 15 Colo. App. 297, 20 Mor. Min. Rep. 620, 62 Pac. 342 (1900). Under a lease providing for removal of fixtures and appliances upon forfeiture it is not error for the court to refuse to permit casings in oil wells to be removed when the effect of such removal would be to destroy the well. Powers v. The Bridgeport Oil Co., 238 111. 397, 87 N. E. 381 (1909). Under a lease giving the right of re- moval of mining machinery, etc., and also providing that a discontinuance of work for twelve months should work a forfeiture of the lease, the lessee had the right to remove the fixtures during the term; but where he abandoned the lease without removing the fixtures, they became the property of the landlord, and were not thereafter liable to be levied upon for debts of the lessee. Davis V. Morse, 38 Pa. St. 346 (1861). Where a lease is forfeited, the lessee has a reasonable time thereafter within which to remove his fixtures. Cassell v. Crothers, 193 Pa. St. 359, 20 Mor. Min. Rep. 160, 44 Atl. 46 (1899). Where the landlord enters and termi- nates a tenancy at will, he acquires no right to the tenant's fixtures, and is liable for their value if he takes and con- verts the same. Cassell v. Crothers, 193 Pa. St. 359, 20 Mor. Min. Rep. 160, 44 Atl. 46 (1899). Where an oil and gas lease provides that machinery, etc., may be removed by the lessee he has the right to do so al- though he may have defaulted in other covenants of the lease. He may have failed to fulfil his contract obligation to develop wells, etc., but that would not 104 Water and Mineral Cases. [Indiana Perry could have shown all the facts set out in his second paragraph of answer tending to defeat appellee's claim to the property. Ford v. Griffin, ioo Ind. 85, 87; Swope v. Paul, 4 Ind. App. 463, 31 N. E. 42, and cases there cited ; Nowlin v. State, 30 Ind. App. 277, 280, 66 N. E. 54. It was not reversible error, therefore, to sustain the demurrer to the second paragraph of answer. Wickwire v. Town of Angola, 4 Ind. App. 253, 30 N. E. 917; Kelley v. Kelley, 8 Ind. App. 606, 34 N. E. 1009; Crum v. Yundt, 12 Ind. App. 308, 40 N. E. 79; Board v. State, 148 Ind. 675, 48 N. E. 226. The terms of the lease pertinent and necessary to the determination of the questions herein involved have been set out verbatim above in the statement of the complaint. Appellee contends that the above-quoted clause providing for cancellation of the lease in the event of failure -to operate the wells for sixty days or pay one dollar per day from the time of such failure is unenforceable because of uncertainty in the de- scription of the tracts to be released. It may well be under the author- ities cited by appellee that an action to quiet title to the 10-acre tracts would lie because of uncertainty in the description. But the case at bar is not one of that kind. It is a suit for conversion of personal property. By the terms of the lease appellee covenanted to surrender the 10-acre tract upon which any well was located upon failure for sixty days to operate said well or pay one dollar per day from the time of such failure to operate. Within limits, this gave appellee the power to select the ten acres which said well would be deemed to hold. In the case of Jones v. Mount, 166 Ind. 570, 77 N. E. 1089, the court said : "It is obvious that such a case as this does not fall within the principle of that class of cases in which it is adjudged that nothing passes by the deed where the terms are so uncertain that the intention of the parties cannot be ascertained. It will be observed that the contract contains a prevent the removal of personal property, the covenants being distinct. Patterson v. Hausbeck, 8 Pa. Super. Ct. Rep. 36 (1898). Under a lease granting privilege of removal of fixtures at any time, the lessee has the right to remove them within a reasonable time after the lease becomes forfeited for nonpayment of rent. Gartland v. Hickman, 56 W. Va. 49, 49 S. E. 14, 67 L. R. A. 694 (1904). III. Question of Agreement or Intent. The removability of fixtures is not controlled by their size or manner of erection or fixing to the property, but by the question whether they are designed for the purposes of trade or not. Van Ness v. Pacard, 27 U. S. (2 Pet.) 137, 7 L. Ed. 374 (1829); Seeger v. Pettit, 77 Pa. St. 437, 18 Am. Rep. 452 (1875). The right of removal of fixtures from a mining claim is subject to the agree- ment of the parties or to the local custom and usage. Merritt v. Judd, 14 Cal. 59, 6 Mor. Min. Rep. 62 (1859). There is no universal test whereby the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation nor the 1909] Perry v. Acme Oil. Company. 105 covenant upon the part of the grantee to surrender. This, within limits, gave the grantee the power of selection, and the mere fact that the land which he might select to reconvey was originally uncertain does not prevent an enforcement of the undertaking according to its terms" — citing Smith v. Furbish, 68 N. H. 123, 44 Atl. 398, 47 L. R. A. 226; Gardner v. Webster, 64 N. H. 520, 15 Atl. 144; Dull v. Blum, 68 Tex. 299, 4 S. W. 489; Nye v. Moody, 70 Tex. 434, 8 S. W. 606; Dohoney v. Womack, 1 Tex. Civ. App. 354, 19 S. W. 883, 20 S. W. 950; Waters v. Bew, 52 N. J. Eq. 787, 29 Atl. 590; Lane v. Allen, 162 111. 426, 44 N. E. 831 ; 1 Jones, Real Property in Conveyancing, 334. Continuing the opinion, the court further said : "There is no more legal uncer- tainty in such a matter as this than there is in the case of a way of neces- sity, where the reservation is implied as resting on the presumed in- tention of the parties." Therefore, since appellee had the power to select the particular tract to reconvey, it cannot be heard to say that the clause is unenforceable because of uncertainty in the description. Machinery and fixtures placed on real estate leased for the purpose of drilling for gas and oil do not become permanent fixtures nor parts of the freehold by reason of such annexation as is necessary to develop the premises according to the terms of the lease, and title to such machin- ery and fixtures does not vest in the lessor because of a forfeiture of the lease. Montpelier Light & Water Co. v. Stephenson, 22 Ind. App. 175, 53 N. E. 444; Gartland v. Hickman, 56 W. Va. 75, 49 S. E. 14, 67 L. R. A. 694; Siler v. Globe Window Glass Co., 21 Ohio Cir. Ct. R. 284. Where the right to remove property "at any time" has been expressly reserved in the lease, such a right is not unlimited as to time, but is limited to a reasonable time after the expiration of the lease. Shellar v. Shivers, 171 Pa. 569, 18 Mor. Min. Rep. 260, 33 Atl. 95. It has been decided in this state that where a lease provided for the drilling or operating of oil or gas wells, or, on failure to so drill or operate, to pay an agreed sum per day to the lessor for such failure or delay, and with the further provision that upon failure to drill or operate, or pay the agreed sum, the lease to become null and void, such a provision is for the benefit of the lessor, and he may either declare a forfeiture of the lease or pro- ceed against the lessee for failure to perform the covenants of the lease. manner of use is in all cases conclusive. It must usually depend upon the express or implied understanding of the parties concerned. Wheeler v. Bedell, 40 Mich. ■693 (1879). The question as to whether certain fixtures are or are not part of the realty may depend upon the intention of the parties, and they may not become a part of the realty although attached by masonry or other permanent means if the intention of the parties was that they should remain the personal property of the lessee. Lake Superior Ship Canal, etc. Co. v. McCann, 86 Mich. 106, 48 N. W. 692 (1891). 106 Wateb and Mineral Cases. [Indiana Hancock v. Diamond Glass Co., 162 Ind. 146, 152, 70 N. E. 149. To the same effect, see also, Edmonds v. Mounsey, 15 Ind. App. 399, 18 Mor. Min. Rep. 384, 44 N. E. 196 and cases cited ; Woodland Oil Co. v. Craw- ford, 55 Ohio St. 161, 44 N. E. 1093, 34 L. R. A. 62; Wills v. Manufac- turers' Nat. Gas Co., 130 Pa. 222, 18 Atl. 721, 5 L. R. A. 603; Thorn- ton, The Law Relating to Oil and Gas, § 151. In the case at bar it does not appear that appellant took any steps to declare a forfeiture or give appellee any notice of such an intention. Consequently at the time when appellant Perry refused to permit appellee to enter the leased premises for the alleged purpose of drawing the pipe from the wells the lease was still in effect, and the title to the fixtures used in operating the wells was in appellee. Therefore the trial court did not err in refusing to instruct the jury that title to the fixtures vested in appellant Perry after sixty days' failure to operate said wells or pay $1 per day in lieu thereof, or that the title vested in said Perry immediately upon the happening of such default. Hancock v. Diamond Glass Co., supra. It does not appear that there was any reversible error on the part of the trial court. The judgment is therefore affirmed. Judgment affirmed. 1909] People ex eel. v. Drainage Distkict. 107 PEOPLE ex rel. CHAPMAN v. SACRAMENTO DRAINAGE DISTRICT. [Supreme Court of California, March 24, 1909.] 155 Cal. 373, 103 Pae. 207. 1. Drainage Districts — Historical Review of. History of the establishment, and development of reclamation or drainage dis- tricts in California. 2. Constitutional Law— Act Creating Drainage Districts. Statute of 1905 (Sess. Laws 443, Hen. G. L. p. 374), creating the Sacramento Drainage District, containing lands situated in ten different counties, for the purpose of promoting drainage therein, providing for the election of commissioners ■with various duties and powers, for the levying of assessments on lands benefited to pay the cost of the reclamation thereof, and creating a board of river control with powers for straightening and controlling the Sacramento and San Joaquin Rivers, is not unconstitutional. 3. Same — Power of Legislature Over Drainage. The legislature has the power to provide for the reclamation of overflowed land and to impose a tax thereupon in proportion to the estimated special benefits which those lands will receive from the work done. 4. Same — Work Must Be of Public Character. To sustain such law it must appear that the character of the work is such that its performance confers some general benefit on the public as well as a private benefit on the landowner. CASE NOTE. Legal Character of Drainage and Reclamation Districts. I. State Agencies, 108. II. Not Corporations, 113. III. Creation by Special Laws, 115. IV. Political Subdivisions of State, 116. V. Public Corporations, 117. VI. Municipal Corporations, 120. VII. Private Corporations, 120. VIII. Quasi Corporations, 121. As to constitutional power to estab- lish drains and drainage districts, see note to Chicago B. & Q. R. Co. v. Board of Supervisors of Appanoose County, post, p. 459. As to source of power legislative power to drain lands, see note to Coffman v. St. Frances Drainage District, p. , vol. 3, this series. As to notice required as due process of law, see note to Ross v. Board of Supervisors of Wright County, post, p. 358. As to rule that public benefit and interest must be involved, see notes to Campbell v. Youngson, p. , vol. 2, this series. As to inclusion or exclusion of lands in drainage district, see note to Hull v. Sangamon River Drainage District, post, p. 593. As to whether action in regard to drainage is legislative or judicial, see note to Smith v. Claussen Park Drain- age & Levee District, p. , vol. 2, this series. As to power of commissioners, etc., see note to Seibert v. Lovell, post, p. 261. As to conclusiveness of decision ol 108 Water and Mineral Cases. [California 5. Swamp and Overflowed Lands — Extent of Jurisdiction Over — Arkansas Act — Mexican Grants. The legislature of the state has jurisdiction over all overflowed lands in the state whether acquired under the Arkansas Act or by Spanish or Mexican grant. 6. Reclamation Districts — Not Corporations, But State Agencies — May Be Created by Special Laws. A reclamation district is not a municipal corporation or a corporation for municipal purposes within the prohibition of article I, section 11, nor article II, section 6, of the Constitution, but is a governmental agency to carry out a specific public purpose. 7. Special Law — Necessity for. A clear showing is required on the face of the law itself before the courts will say that a special law was not required. 8. Novel Litigation — Scrutinized with Care. The fact that legislation is novel, demands of the court that it be scrutinized with exceptional care, but it does not dictate its condemnation. 9. State Control of Waterways — Assessment for Improving. In the matter of governmental power and control, the water highways of the state do not differ from the land highways, and legislation which exacts contribu- tions from lands adjacent to the inland waterways stands upon the same ground as that which exacts similar contributions for land highways. 10. Local Improvements — Power to Assess for. The source of the power of the state to assess lands for local improvements is the governmental power of the state to tax, and to specially tax for a public purpose, where the work to be done will confer a special benefit upon the property of the particular landowner as distinguished from the general good which it will work to all. 11. Constitutional Law — Title of Act. Where the act contains more than one subject-matter and the title does not express all, the whole act is not void. The purpose of requiring the subject-matter to be expressed in the title is to prevent and check deceptive litigation. drainage commissioners and other offi- cers, see note to Chapman & Dewey Land Co. v. Wilson, vol. 2, this series. As to collateral attack on drainage proceedings, see note to Chapman & Dewey Land Co. v. Wilson, vol. 2, this series. As to waiver of irregularities in drain- age proceedings, see note to Smith v. Claussen Park Drainage & Levee Dis- trict, p. — , vol. 2, this series. As to bonds of drainage districts, see note to Sisson v. Board of Supervisors of Buena Vista County, p. , vol. 3, this series. For historical review of reclamation districts in California, see People ex rel. Chapman v. Sacramento Drainage Dis- trict, the principal case. I. State Agencies. Drainage and reclamation districts have been variously classed as public corporations, municipal corporations, quasi corporations, private corporations and in later cases declared not to be corporations, but state agencies for the accomplishment of state purposes and public work. The various cases and holdings are given in the following sub- divisions. If reclamation districts can be called corporations at all, they are properly called corporations for municipal pur- poses. That phrase means no more than that they are state organizations for state purposes. They are certainly not municipal corporations in the strict sense. They have not the power of local government, which is the distinctive 1909] People ex eel. v. Drainage District. 109 12. Reclamation Districts — Power to Abolish. The legislature, having due regard to vested rights, may put all existing drain- age or reclamation districts out of existence and create a board to manage all fur- ther reclamation. 13. Legislative Act — Presumption as to. Where the taking of evidence is necessary before action by the legislature, the court will conclusively presume it was taken. 14. Reclamation Districts — Legislature May Fix Boundaries. The legislature has power to fix a district for the drainage or reclamation of lands, without any hearing as to benefits, for the purpose of assessing upon the lands within the district the cost of a local public improvement. 15. Constitutional Law — Conferring Judicial Powers. The creation of a board of drainage commissioners, with quasi judicial powers, that is, to hear and determine objections to and to equalize assessments, is not un- constitutional. 16. Same — Due Process of Law. Where an opportunity to be heard either before or after the levying of the as- sessment is given, there is no taking of property without due process of law. 17. Drainage Commissioners — Qualifications of — Property Owner. Owning property within the district is not such an interest as disqualifies one from acting as commissioner of the district. 18. Constitutional Law — Double Taxation — Special Assessments. Special assessments for local improvement is not double taxation, for they are levied for the special benefit the land receives from the improvement in addition to the general benefits for which general taxes are levied. 19. Same — Impairing Obligation of Contract. Obligation of contract is not impaired by a state changing its plans for the reclamation of overflowed lands, and creating new and different agents and man- datories. 20. Same — Elections in Reclamation Districts — Property Qualification. A property qualification in order to be a voter at elections in drainage or reclama- tion districts does not violate a constitutional inhibition against requiring a prop- erty qualification for voters. The legislature permits the landowners to appoint their own agents, and the method which it imposes in making the selection is wholly within its own control. purpose and distinguishing feature of a municipal corporation proper. All definitions of such include as essential a territory which is a portion of the state and the inhabitants thereof, and the purpose to furnish local government for such inhabitants and such territory. The law does not require inhabitants in a swamp land or reclamation district, and if there are residents, it in no way affects them as such. Those who own no land within the district are not af- fected by the organization at all. The owners and the only ones affected by the formation of the district may be nonresident aliens. Residents as such have no voice in the management of the supposed corporation. There is no local government beyond that exercised over a specific district whenever street work is done and property owners are charged with cost thereof. Certainly these districts are not municipal corporations as that term is used in the Constitution, prohibiting the formation of corporations by special acts. They are neither public nor private corporations as defined in the California Civil Code. They are special organizations to perform certain work which the policy of the state re- quires or permits to be done, and to which the state has given a certain degree of discretion in making the im- provements contemplated. They are not 110 Water and Mineral Cases. [California Quo warranto to test validity of drainage district formed by direct act of legislature. Judgment for defendant. Affirmed. For appellant — U. S. Webb, Attorney General, Arthur C. Huston, W. H. Grant and C. E. McLaughlin. For respondents — Devlin & Devlin, and George & Hinsdale. HENSHAW, J. This is proceeding in quo warranto, brought under section 803, Code Civ. Proc. That section authorizes the attorney gen- eral in the name of the people of the state, upon his own initiative or upon that of a private person, to prosecute an action against any person ''who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state." In 1905 (St. 1905, p. 443, c. 368), the legislature passed an act entitled "An act to create a drainage district to be called 'Sacramento Drainage District;' to promote drainage therein; to provide for the election and appointment of officers of said drainage district; denning the powers, duties and compensations of such officers and providing for the creation, division and management of reclamation, swamp land, levee, drainage and protection districts within said Sacramento Drainage District, and pro- viding for levying and collecting assessments upon the lands within said accurately corporations at all, but are so classed because many of the presumptions and rules which apply to corporations have been made applicable to them. They are public agencies which will cease to exist when the policy of the state has changed so that they are no longer required or when there is no further function for them to perform, and there is nothing in the Constitution relating to municipal corporations which would prevent the state from so chang- ing its policy as to put them out of existence. People ex rel. Van Loben Sels v. Keclamation District No. 551, 117 Cal. 114, 48 Pac. 1016 (1897). A reclamation district formed under the act creating a state board for recla- mation of swamp and overflowed lands, which was required upon petition of owners of one-third in acreage of any swamp and overflowed land susceptible of one mode of reclamation, to cause surveys to be made and a plan of the proposed work made, and upon their approval the work to be done by contract and paid for out of the state swamp land fund, did not create a public cor- poration. These districts were merely tracts of land susceptible of one mode of reclamation for which reason, and be- cause of which fact, specific work was to be done by the state board, which was, under certain contingencies, to assess the cost upon the lands of the district. They had no more resemblance to public corporations than benefited dis- tricts which are assessed for local improvements, such as opening and grad- ing streets. No powers whatever were conferred upon the district or upon any officers thereof, nor were any duties imposed upon any one, which implied that a corporation had been created. The district was not organized, as a corporation, there was nothing to which corporate powers could be attributed. People ex rel. Van Loben Sels v. Recla- 1909] People ex eel. v. Dkainage District. Ill drainage district." The provisions of this act, so far as material to the present consideration are as follows : The legislature created a drain- age district, defining the boundaries thereof and the lands embraced therein. These lands are situated in the counties of Sacramento, San Joaquin, Solano, Yola, Colusa, Sutter, Yuba, Placer, Glenn, and Butte, and this territory embraces in part lands already organized into reclama- tion, drainage, swamp land, or levee districts. The act provides for the selection of drainage commissioners, nine in number, apportioned among the above-named counties. These commissioners are to be elected by the owners of real property within the district ; each owner being entitled to cast one vote for each dollar's worth of property. Provisions are made for the conduct of these elections and the filling of vacancies which may arise in the board. With other powers, the board of drainage commis- sioners is given supervisory control over the proposed work of reclama- tion districts within the limits of the drainage district, is empowered "to approve or disapprove any plan of reclamation in any reclamation dis- trict, to compel the construction and maintenance of necessary reclama- tion works in reclamation districts, to appoint trustees of reclamation districts in case of vacancies, and in general, to do all other acts and things necessary or requisite for the full exercise of their powers, or necessary for the promotion of the reclamation of lands within the drainage district." In this connection power is expressly conferred "to supervise and control the formation, consolidation or division of reclama- tion districts within said drainage district." When necessary, the board power of eminent domain, and other functions of local government. People ex rel. Wetz v. Hepler, 240 111. 196, 88 N. E. 491 (1909). It is competent for the state to raise up governmental agencies for enforce- ment of police power and for the pur- pose of enhancing revenues and carrying revenue laws into effect. The agency thus created is an arm of the state and a political subdivision of the state, and exercises prescribed functions of govern- ment and is not a private corporation in any sense. Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 60 L. R. A. 190, 94 Am. St. Rep. 727, 70 S. W. 721 (1902). A levee district is not a private cor- poration, but a political subdivision of the state which the state has the power to create under the police powers, and mation District No. 551, 117 Cal. 114, 48 Pac. 1016 (1897). A reclamation district is a public agency created in furtherance of the public policy of the state, a public organization formed to perform certain work which the policy of the state requires or permits to be done, and is not either a public or private corporation. Reclamation Dist. No. 551 v. County of Sacramento, 134 Cal. 477, 66 Pac. 668 (1901); People ex rel. Chapman v. Sacramento Drainage District, 155 Cal. 373, 103 Pac. 307, principal case. Drainage districts are local subdivis- ions of a state, created by law for the purpose of administering therein certain functions of local government, and the commissioners exercise a portion of the sovereign power of the state, being in- vested with the power of taxation, the 112 Water and Mineral Cases. [California may levy an assessment upon the lands within the district, and in the levy- ing of such assessment the board is required to make an estimate of the sum necessary. It is then to appoint three disinterested persons as assess- ors. These assessors are to assess upon the land within the drainage dis- trict the sum so estimated by the board of drainage commissioners, and shall "apportion the same according to the benefits that will accrue to each tract of land in said district respectively by reason of the expenditure of said sums of money." The assessors are required to make their lists, describing the tracts of land assessed, with the names of the owners, if known, and the amount assessed against each tract. These lists are to be filed with the secretary of the board of drainage commissioners, who in turn shall forward to the county treasurer of each county the assess- ment list for such county, which shall be open to inspection by the pub- lic. Thereupon the board of drainage commissioners is to appoint a time and place for each county, when and where it will meet for the purpose of hearing objections to the assessments. Notice is to be given by publication for two weeks in a newspaper in the county, published nearest to the district. Any person believing himself to be injured by the assess- ment may present his grounds of objection thereto, and at its meeting the board of drainage commissioners shall hear the evidence offered touching the correctness or equity of such assessment, "and may modify or amend the same, and the decision of said board of drainage commis- sioners shall be final, and thereafter said assessment list shall be conclu- sive evidence that the said assessment has been apportioned according to the benefits that will accrue to each tract of land in said district and such assessment shall constitute a lien upon the lands so assessed." After thus equalizing the assessment, the moneys called for thereunder as such subdivision it exercises the pre- scribed functions of government in the district. Morrison v. Morey, 146 Mo. 561, 48 S. W. 629 (1898). Drainage corporations are public governmental agencies, and in no sense private corporations. Mound City Land & Stock Co. v. Miller, 170 Mo. 240, 253, 258, 70 S. W. 721, 94 Am. St. Rep. 727, 60 L. R. A. 190 (1902); State ex rel. Compton v. Chariton Drainage Dist. No. 1, 192 Mo. 517, 90 S. W. 722 (1905). Under the authority conferred, the board exercises a police power for the promotion of the public health and wel- fare, and is not clothed with the cor- porate powers or privileges forbidden by constitutional provision prohibiting formation of corporations by special laws, although the act is clearly a special law. State ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 N. W. 947, 6 L. R. A. 394 (1889). Where the Constitution provides that the general assembly may pass laws permitting owners of lands to construct drains, etc., across lands of others and provide for reclamation districts, etc., the provision is not self-operative nor mandatory. The right results only after making compensation in damages, which in contemplation of law includes all loss or injury to the one whose land is so taken. There are none of the elements 1909] People ex eel. v. Drainage Disteict. 113 are to be paid into the county treasury in instalments in such amounts and at such times as the board shall by order direct, sixty days being allowed for payment after such order. The board of drainage com- missioners is authorized to begin suit in the superior court of the county where the land is situated for the collection of delinquent and unpaid assessments, and for the foreclosure of the lien upon the property in enforcement of such collection. A board known as the "Board of River Control" is also created. This board consists of two members, appointed by the governor of the state, one of whom is to be the president of the board of drainage commis- sioners, and the other some competent civil engineer. The duties of the board of river control are, for the most part, advisory. This board has supervision of all levees and canals intended to do duty in disposing of flood waters. It is empowered to acquire from private owners or from reclamation, swamp land, or other districts, such rights of way, ease- ments, and property as may be necessary for its purposes. It is the duty of the board to advise and consult with such board or officers as may be appointed by the government of the United States, to advise and construct works for the improvement and rectification of the channels of the Sacramento and San Joaquin Rivers and their tributaries. It is its duty also to examine all plans and specifications which may be prepared or adopted for the construction of the works for the controlling of flood waters or improvement of the channels of the rivers and their tributa- ries, and to submit a copy of all such plans arid specifications to the state board of examiners for the latter's investigation and consideration. When. called upon, the board is to confer and advise with the state board of examiners upon the matter of these plans. of a contract. These corporations are not of a private character, but created by public act for public purposes, and clothed with power of a high order, and the law providing for their organization is subject to be changed, modified or repealed. Smith v. People, 140 111. 355, 29 N. E. 676 (1892) ; Hollenbeck v. Det- rick, 162 111. 388, 44 N. E. 732 (1896). II. Not Corporations. Reclamation districts are not corpora- tions in the ordinary sense of the term. If termed corporations at all, they have only such powers and such liabilities as are prescribed by the law which creates them. Hensley v. Reclamation Dist. No. 556, 121 Cal. 96, 53 Pac. 401 (1898). W. & M— 8 The likeness of these state agencies to corporations is superficial, and the similitude, for it is no more than this, ceases if consideration be given to the fact that the state could accomplish this very work without organizing a district as such at all, and without giving the landowners within the dis- trict any voice in the selection of the managers or trustees. Thus it would be perfectly legal and competent for the legislature delimiting a tract of land, to appoint a commissioner or commission- ers to perform all of the functions which, under existing schemes, are performed by the trustees and assessors. Reclama- tion Dist. No. 70 v. Sherman, 11 Cal. App. 399, 105 Pac. 277 (1909). 114 Water and Mineral Cases. [California Within six months after the organization of the board of drainage commissioners, this board is to appoint a committee of three persons to act in conjunction with a similar committee appointed by the Governor of the State of California to determine the proportion to be borne by said district and state, respectively, of the cost of constructing and com- pleting either the work recommended in the report of certain named engineers, or the work called for by such other plan as shall be ap- proved by the state board of examiners. When this cost has been ap- portioned, and the apportionment approved by the board of drainage commissioners, the latter shall appoint three assessors — disinterested per- sons — who, in the manner above outlined, shall proceed to assess upon the lands within the drainage district the sum apportioned against said district as its proportion of the cost of the work. All the proceedings for the levying, equalizing, and collecting of such assessment are pre- scribed as above set forth. It is provided, however, that no part of this assessment shall be called in or collected "until the State of California and the Government of the United States, or one of them, shall have made an appropriation, or other legal provision, for the payment of the balance of the sum to be expended jointly with said district in performing the work according to the plans adopted, and in case payment of said sum by the state or by the United States shall not be provided for within five years from the time said assessment shall have been levied, said assessments shall become void, and the lien thereof upon the lands shall expire.". Provisions then follow for the formation of new reclamation districts within the area of the drainage district, under the supervision and control of the drainage commissioners, and for the consolidation of existing districts, under like supervision and control. And finally, it is provided that until legal provision has been made by the State of Cali- Swamp land districts marked out under the Act of 1861 were not public corporations; they were merely tracts of land susceptible of one mode of re- clamation, for which cause specific work was to be done by the state board, who were under certain contingencies to as- sess the cost on the lands of the district. They had no more resemblance to public corporations than benefited districts which are assessed for local improve- ments such as opening, widening, and grading streets. People ex rel. Van Loben Sels v. Reclamation Dist. No. 551, 117 Cal. 114, 48 Pac. 1016 (1897). A reclamation district is not a pri- vate corporation, nor does the law authorizing it in any way constitute a private grant, and it may be altered, modified or repealed as the wisdom of the legislature may dictate. Smith v. People ex rel. Detrick, 140 111. 355, 29 N. E. 676 (1892). Commissioners of levee districts are public, not corporate officers, and en- dowed with a corporate being only for the convenience of administering a public trust confided to them. The state has defined this trust and its attendant du- ties. Nugent v. Board of Mississippi Levee Comm'rs, 58 Miss. 197 (1880). 1909] People ex eel. v. Drainage District. 115 fornia or the Government of the United States for the payment of such proportion of the cost of the work as may be charged to them, or either of them, under the adopted plan, the powers of the board of drainage commissioners conferred by the act are suspended, excepting that the board may cause to be levied and collected an assessment, not exceeding the sum of $50,000, to be used in the furtherance of the general plan; and the powers of all boards of supervisors, trustees of reclamation and other districts are continued in force until the general powers of the drainage commissioners shall have become fully effective. The purpose and scope of the act are clearly discernible from a read- ing of it. The causes which led to its enactment form a part of the history of the state. Riparian, or in proximity, to the great San Joaquin and Sacramento Rivers, are vast tracts of low-lying lands, some strictly swamp lands, others subject to overflow at the usual stages of high water, others liable to inundation in times of extraordinary freshet, but all requiring the expenditure of money in the construction of levees, drain- age ditches, and pumping plants for their reclamation and subjection to economic use. Some of these lands, and indeed some embraced within the drainage district thus created, were acquired by the State of Cali- fornia from the United States under the Arkansas Act, and in turn were sold into private ownership by the state. Others came into the hands of private owners by mesne conveyances; the original source of such titles being the government of Spain or Mexico, whose grants were confirmed by the United States. Aside from any duty which it may be conceived that the State of California owed to the United States because of the trust upon which it took the lands under the Arkansas Act, it was clearly desirable and beneficial to the state that all of these III. Creation by Special Laws. An act forming a body corporate, with powers to build and maintain a levee, is not in contravention of the constitu- tional provision that legislature shall enact no special law where a general law can be made applicable, or that the legislature shall not by special act con- fer corporate powers. Keel v. Board of Directors of St. Francis Levee Dist., 59 Ark. 513, 27 S. W. 590 (1894). If reclamation districts can be said to be corporations at all, they are public corporations for municipal purposes, and this means no more than they are state organizations for state purposes, and not municipal corporations in the strict sense of the word, or as that term is used in the Constitution. People ex rel. Van Loben Sels v. Reclamation District No. 551, 117 Cal. 114, 48 Pac. 1016 (1897). A reclamation district is not a muni- cipal corporation or a corporation for municipal purposes within the prohibi- tion of article 1, section 11, nor article II, section 6 of the Constitution of Cali- fornia, but is a governmental agency to carry out a specific purpose. People ex rel. Chapman v. Sacramento Drainage District, principal case. Reclamation districts are not muni- cipal corporations within purview of the constitutional prohibition against creat- ing municipal corporations by special 116 Water and Mineral Cases. [California lands should be reclaimed for purposes of husbandry. This improve- ment would add great wealth to the state, and this improvement there- fore would result in a public benefit. Upon the other hand, the specific lands thus reclaimed would be especially benefited by their enhanced and assured productiveness, and it was proper that such lands should bear the cost of the work of reclamation proportioned to the benefits which they would thus receive. Such being the condition, levee dis- tricts, drainage districts, and reclamation districts came into existence, some by special legislative enactment, others under general and permissive laws. One and all these laws had in view the same end, the reclamation of the lands from the excess of waters which poured upon them, and the opening of them to uses otherwise impossible, with the increase in set- tlement, population, and general prosperity which inevitably would follow. In time two impeding difficulties came to be perceived: (i) That, because of the great number of such small districts, each operated inde- pendently and under no general plan for the good of all, much money and labor were wasted. Since there was no common and harmonious plan of reclamation, one district frequently worked in antagonism to another. The operations or the neglect of one district might tend to im- peril the existence of another; while the extravagant use of money made necessary because of the lack of concerted action and because each dis- trict was obliged to fight not alone the common enemy, the water, but perhaps equally an adjoining district, put burdens upon many of the dis- tricts which soon became intolerable, with the result that the districts themselves were sometimes abandoned, and their works fell into disre- pair and disuse. (2) Owing to the sediment and debris settling upon the bottoms of these rivers, the plane of their water levels was heightened, laws. People ex rel. Chapman v. Sacra- mento Drainage District, principal case; Reclamation Dist. No. 70 v. Sherman, 11 Cal. App. 399, 105 Pac. 277 (1909). Laws providing for the formation of drainage districts, authorizing them to manage the affairs of the district, etc., is not unconstitutional as authorizing by special act the formation of a private corporation to improve private property. Mound City L. & S. Co. v. Miller, 170 Mo. 240, 70 S. W. 721, 94 Am. St. Rep. 727, 60 L. R, A. 190 (1902). Acts of legislature conferring corpor- ate powers upon mere state agencies, bodies of citizens who have no personal or private interest to be subserved, but are simply required by the state to do some public work, are not acts conferring corporate powers such as are referred to in the constitutional provisions pro- hibiting the conferring of corporate powers by special laws. State ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 tf. W. 947 (1889). And see note I, C, to Chicago B. & Q. R. Co. v. Board of Supervisors of Appa- noose County, post, p. 462. IV. Political Subdivisions of State. It is competent for the state to raise up governmental agencies for enforce- ment of its police power. The agency thus created is an arm and political sub- 1909] People ex rel. v. Drainage District. 117 to the increased endangerment of the adjacent lands. In times of flood it became more and more difficult for these rivers to carry and dis- charge their waters through the natural channels, and the condition soon became a matter of state and national concern. The Government of the United States primarily, and of the state secondarily, having in them vested the exclusive management and control of navigable waters, were confronted with the corresponding duty of preserving the two great inland water highways of the state. The accomplishment of this called for the deepening and the rectification of the river channels, mat- ters exclusively of federal or state cognizance. In turn, however, such deepening and rectification, by enabling the rivers successfully to carry and dispose of their flood waters, would greatly facilitate the labor of reclamation imposed upon the owners of the adjacent lands. Thus, in outline, is presented the situation with which the state was confronted. Itself, or the federal government, or both, would take charge of the work of widening, deepening, and straightening the river channels. Itself, or the federal government, or both, would provide funds for the pay- ment of this work. Upon the other hand, the lands adjacent to the rivers would be greatly and directly benefited by this work, and should be subject to special assessment to pay for the special benefit thus received. Such being the situation, it was deemed expedient by the state to form one large district, to the end that the commissioners of such district might by exercising supervisoral control over the smaller districts, and by adopting one general plan of reclamation, economize in expenditures, save the extravagant waste of moneys which had been a part of their past history, and by a general assessment over a large area materially lessen, perhaps, the burden which the landowners might otherwise be called upon to bear. These were the obvious reasons actuating the legislature in formulating the scheme in the act under consideration. It is to be considered whether the expression which they gave to their plan does violence to the Constitution. division of the state, and exercises pre- scribed functions of government. Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707 ( 1897 ) ; Badgar v. Inlet Drainage Dist., 141 111. 540, 31 N. E. 170 (1892) ; Zigler v. Mengea, 121 Ind. 99, 22 N. E. 782, 16 Am. St. Rep. 357 (1889); Mound City Land & Stock Co. v. Miller, 170 •Mo. 240, 70 S. W. 721, 60 L. R. A. 190, 94 Am. St. Rep. 727 (1902); Taylor v. Crawford, 72 Ohio St. 560, 74 N. E. 1065, 69 L. R. A. 805 (1905) ; Donnelly v. Decker, 58 Wis. 461, 17 N. W. 389, 46 Am. St. Rep. 657 (1883); Roby v. Shunganunga Drainage Dist., 77 Kan. 754, 95 Pac. 399 (1908) ; Wurts v. Hoag- land, 114 U. S. 606, 5 Sup. Ct. Rep. 1086, 29 L. Ed. 229 (1884); Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. Rep. 56, 41 L. Ed. 369 (1896). V. Public Corporations. A levee district formed by special act of the legislature, with power to make contracts, incur debts, employ servants and agents, and perform many other acts 118 Water and Mineral Cases. [California i. The question of the power of the legislature, in a proper case, to impose a burden in the nature of a tax upon specific lands, in proportion to the estimated special benefits which those lands will receive from the work done, may not be doubted. The limitation upon its power, it is well settled, is this: That to sustain such a law it must appear that the character of the work is such that its performance confers some gen- eral benefit on the public as well as a private benefit on the landowner; and that the improvements here contemplated are of such character has long been definitely settled. So complete is the power of the state over swamp and overflowed lands that its power to provide for reclama- tion of them is not limited to those lands the title to which was acquired under the Arkansas Act; but it exists as to all swamp and overflowed lands in the state, even if the title was derived from a Spanish or Mexican grant. Hagar v. Yolo Co., 47 Cal. 222; Hagar v. Rec. Dist, in U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 163, 17 Sup. Ct. 56, 41 L. Ed. 369. 2. The act does no violence to article 1, section 11, nor to article 4, section 25, nor to article 11, section 6, of the Constitution of the state. That the district here organized, if it be considered a corporation at all, is not a corporation organized for municipal purposes within the con- templation of article 11, section 6, of the Constitution, must be taken as well settled. People v. Reclamation District 551, 117 Cal. 114, 48 Pac. 1016; People v. Levee District No. 6, 131 Cal. 30, 63 Pac. 676; Reclamation District v. County of Sacramento, 134 Cal. 477, 66 Pac. 668. It is unnecessary to repeat the reasons set forth in the decisions in those cases by which the conclusion there reached was expressed, to the effect that such districts are, in strictness, which pertain to natural persons, is a public corporation, although not formed or organized for the government of a portion of the state in the broader sense of that term; but it exercises certain governmental functions within the dis- trict. Dean v. Davis, 51 Cal. 406 (1876). Corporations formed for drainage pur- poses are public corporations. The ob- jects contemplated by them are to be accomplished with funds raised by special assessment upon property benefited there- by. The power to make special assess- ments is referable to and included with- in the taxing power, and one of the requisites of lawful taxation is that the purposes for which contributions are demanded shall be public in their nature, although the formation of the district be by the voluntary affirmative act of the landowners and its organization for their benefit. It is not in its character and aims essentially a private corpora- tion, and is in no sense a corporation in invitum. As a matter of course the organization is in part for the benefit of the landowners of the district, for the special assessments which may be made are limited to the property actually benefited and further limited to the extent of such benefits, but there is al- so a public benefit, and it is only by virtue of drainage being a matter of public importance that the involuntary 1909] People ex eel. v. Drainage Distkict. 119 not corporations at all, but rather governmental agencies to carry out a specific purpose; the agency ceasing with the accomplishment of the purpose. But, additionally, it may be said that the likeness of these agencies to corporations is superficial, and that the similitude — for it is no more than this — ceases if consideration be paid to the fact that the state could accomplish this very work without organizing a district as such at all, and without giving the landowners within the district any voice in the selection of the managers or trustees. Thus it would be perfectly legal and competent for the legislature, delimiting a tract of land, itself to appoint a commissioner or commissioners to perform all of the functions which, under the existing schemes, are performed by the trustees and the assessors. In fact, historically, such was the original method adopted when, in the reign of Henry VIII., the first statute was passed providing for the construction of sewers, drains, and other improvements designed to reclaim swamp lands (St. 23 Hen. VIII., c. 5, par. 1 [1531]), and such is the method still adopted in many of the states of this nation. It is in accord with the progressive spirit of our government to give to the people, or some part of them, the largest possible control in matters peculiarly affecting them and their interests. It is a concession to this spirit, and not the compulsion of the law, which prompts the legislature to give the landowners so large a voice in the control of such affairs. Nor, while a special act, is the law obnoxious to the other sections of the Constitution above cited. The considerations dictating the neces- sities of a special law are plain as above set forth. It would require a clear showing upon the face of the law itself that a special act was not required, before a court would interfere with the determination of a co- ordinate branch of the government upon this subject, and, generally, as is said in People v. McFadden, 81 Cal. 489, 22 Pac. 851, 15 Am. St. Rep. 66, the determination of such a matter "depends upon questions of fact which this court has no means of investigating, and upon the solution of which it would not attempt to substitute its judgment in place of that of the legislature." landowners can be taxed for the improve- ment. Elmore v. Commissioners, 135 111. 269, 25 N. E. 1010, 25 Am. St. Rep. 363 (1890) ; Heffner v. Cass & Morgan Coun- ties, 193 111. 439, 62 N. E. 201, 58 L. R. A. 353 (1901). A reclamation district is a public cor- poration. People v. Reclamation Dist. No. 108, 53 Cal. 346 (1879); People V. Williams, 56 Cal. 647 (1880); Hoke v. Perdue, 62 Cal. 545 (1881); People v. Larue, 67 Cal. 526, 8 Pac. 84 (1885); Reclamation District No. 124 v. Gray, 95 Cal. 601, 30 Pac. 779 (1892) ; Swamp Land District No. 124 v. Silva, 98 Cal. 51, 32 Pac. 866 (1893) j Angus v. Brown- ing, 130 Cal. 503, 62 Pac. 827 (1900); McGillis v. Willis, 39 111. App. 311 (1S91). 120 Water and Mineral Cases. [California 3. It is argued with much earnestness that no such law as this has heretofore ever been found upon the statute books, and that it should be condemned as unconstitutional, as being a covert attempt upon the part of the state, under the guise of assessment for special benefit, to force upon the unfortunate landowners the cost of the work for which alone the sovereign state should pay, the work of the improving of the channels of its navigable rivers. The fact that legislation is novel demands of a court that it be scrutinized with exceptional care ; but it does not dictate its condemnation. It is true that the protection and development of its harbors and waterways (subject always to the paramount right of the United States) are matters of state consideration and control. It is true also that usually, since the work is for the general benefit of all of the people, the expense is met by the state itself; but it does not here- from follow that in every case it is the legal duty of the state so to bear the burden. Whenever the legislature has spoken, the question before the court is not the propriety of its legislation, but its power to legislate. The harbor of San Francisco is benefited for purposes of navigation and commerce by a sea wall along the water front. At the same time it will not be questioned that the lands held in private ownership in close proximity to such sea wall, and which without such sea wall would be inundated "water lots," are especially benefited by this harbor work. The state, if it elects, may pay all the cost ; but it will not be de- nied that the state has the power to impose upon the adjacent lands specially benefited by the work an assessment in proportion to such benefits, to defray a part of the cost. Or, again, in the matter of govern- mental power and control, the water highways of the state do not differ from the land highways. The power of the state to exact payment for the improvement of its streets from the owners of land adjacent thereto, in proportion to the benefits which their lands receive, is unquestionable and unquestioned. Legislation which in like manner exacts similar con- VI. Municipal Corporations. Drainage districts should be classed as municipal corporations. Commission- ers of Drainage Dist. v. Kelsey, 120 111. 482, 11 N. E. 256 (1887); Elmore v. Drainage Commissioners, 135 111. 269, 25 N. E. 1010, 25 Am. St. Rep. 363 (1890) ; but with limited powers, Badger v. Inlet Drainage Dist., 141 111. 540, 31 N. E. 170 ( 1892) ; People ex rel. Gauen v. Niebruegge, 244 111. 82, 91 N. E. 115 (1910). VII. Private Corporations. A law providing for the construction of a levee, naming five persons as com- missioners to construct the same, author- izing them to ascertain what lands with- in designated district were liable to overflow, and to levy a tax of not more than one dollar per acre against the owners for the purposes of carrying out the objects of the act, and declaring the commissioners a body corporate with perpetual succession and power to hold real and personal property, which act was never in any mode submitted to a vote of the inhabitants of the district embraced therein, and under which the 1909] People ex eel. v. Deainage District. 121 tribution from lands adjacent to the inland waterways for like considera- tions, stands upon the same ground, and for the same reason may not be successfully assailed. The two classes of legislation are congeneric and have their origin and draw their inspiration from the same power and source, the governmental power of the state to tax, and to especially tax for a public purpose, where the work to be performed will confer a special benefit upon the property of the particular landowner, as dis- tinguished from the general good which it will work to all. 4. It is urged the act does violence to article 4, section 24 of the Con- stitution, in embracing more than one subject-matter and in not em- bracing in its title the principal subject-matter. The penalty which the Constitution imposes upon such legislation is to make void the matter which is not expressed in the title. This inquiry being in quo warranto, and the legitimate subject-matter of investigation being the usurpation by defendants into an office or franchise, it may be that the act contains pro- visions not germane to nor fairly embraced within the subject-matter of the title, but only in the event that such an unexpressed provision or provisions may be essential to the existence to the law itself does it be- come material to this consideration. If not fatal to the life of the act, such provisions fall, without destruction of the act itself, and their con- sideration and discussion would have no proper place upon this appeal. The title of the act has been quoted above. It is contended that this title masks, conceals, indeed, omits reference to the principal purpose of the act, which is the improvement of the river channels, and the throwing of the burden of the cost of such improvement upon the private land- owner. It may be conceded that the title of the act contains no sugges- tion that in the promotion of drainage and reclamation of the lands property owners to be taxed have no voice in the control of the company, the selection of its officers, or the imposition of the tax, creates a private corporation, although the object will be when ac- complished, a public benefit, and as such is unconstitutional as granting a right of taxation to a private corporation. Harward v. St. Claire & Monroe Levee & Drainage Dist., 51 111. 130 (1869); George Hessler v. The Drainage Com- missioners, 53 111. 105 (1870). VIII. Quasi Corporations. A drainage district is a voluntary quasi corporation, organized for a special and limited purpose. Its powers are restricted to such as the legislature has deemed essential for the accomplish- ment of such purpose, and it is only authorized to raise funds for the spe- cific object for which it is formed, and can do that in no other mode than by special assessments upon the property benefited, which can in no case exceed the benefits to the lands assessed. Elmore v. Drainage Commissioners, 135 111. 269, 25 N. E. 1010, 125 Am. St. Rep. 363 (1S90) ; Barton v. Minnie Creek Drain- age Dist., 112 111. App. 640 (1903). Sels v. Greene, 81 Fed. 555 (1897). Drainage districts, organized as they are, and clothed with the powers they exercise, created by general public laws 122 Water and Mineral Cases. [California within the district the improvement of the river channels is contemplated ; but the title is broad enough in its language to disclose that the general purpose of the act is to provide a scheme for the betterment of the lands lying within the described area. Such aspects of the rectification and improvement of the river channels as are set forth in the act, if falling within and germane to the general purpose announced by the title, did not require expression in that title. The two great purposes of the act, as above suggested, are, first, to bring into harmony under one general board of control the plans and work of existing districts and of the other lands not in them embraced. All this is quite independent of the matter of the improvement of the river channel. The second purpose is contin- gent upon the action of the state or federal government. It contemplates, still for the general purpose of the promotion of the reclamation of the lands, that it shall be determined what benefit those lands will receive, if any, when the government shall undertake this work. It was not the purpose of the constitutional provision here invoked to hamper legisla- tion, but to check and prevent deceptive legislation (Cooley, Const. Lim. [6th Ed.] p. 175; Ex parte Liddell, 93 Cal. 638, 29 Pac. 251 ; Law v. San Francisco, 144 Cal. 388, yy Pac. 1014; Beach v. Von Detten, 139 Cal. 462, 7$ Pac. 187; People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86), and we hold that the subject-matter of the benefits which might accrue to the land in the event of the rectification and deepening of the river channels was subordinate, germane to, and within the general pur- pose of the title, and did not call for express mention in that title. The other considerations presented by appellant as showing that the body of the act contains a multiplicity of subjects foreign to its title may be disposed of collectively. From what has been said, it appears that the creation of the board of river control is not only within the purpose, but within the very title, of the act. The other objections go to the pow- ers conferred upon the officers, and it may be seen that these powers are in legitimate aid of the general purpose of the act. If it should hereafter for public purposes, are in no sense pri- vate corporations, but on the other hand they are at least quasi public corpora- tions, and as such the laws providing for their organization are subject to be changed, modified or repealed, as the wisdom of the legislature may direct. Smith v. People ex rel. Detrick, 140 111. 355, 29 N. E. 676 (1892). A drainage district is to be classified with counties, townships, school districts, road districts, and other quasi involun- tary corporations, as distinguished from municipal corporations or private cor- porations. Such a district is a sub- division merely of the general powers of the state for the purposes of civil and governmental administration. Rood v. Claypool Drainage and Levee Dist., 120 Fed. 207 (1903). An act of the legislature creating a drainage district, with commissioners who are to take oath, give bonds for the faithful performance of their duties, 1909] People ex rel. v. Drainage District. 123 be found that as to some specific matter excessive power had been con- ferred, it would be so decreed ; but the decision would not tend to destroy the law as a whole. Upon the general subject-matter of the management and control over the existing districts, vested in the board of commis- sioners of the district here created, it may be suggested that it was within the unquestioned power of the legislature, with due regard to vested rights, to have put out of existence all of these districts, and, having done so, to have created a board of commissioners to manage future works of reclamation. That it has done less than this, by conferring upon such a board supervisoral control of these districts, while continu- ing their existence, is but an exercise by the legislature of less than its plenary power. 5. It is argued that the act in question works a taking of the land- owner's property without due process of law. Herein it is insisted: (a) That the landowner was denied a hearing to which he was entitled^ upon the question of the inclusion or exclusion of his land; (b) that an illegal and unconstitutional tribunal was created to pass upon and determine the question of the benefits which his land, so improperly included, may re- ceive, in violation of article 6, sections 1 and 5, of the Constitution. (a) Where the legislature has itself spoken in the creation of a district such as this, and where the legislative determination may be deemed to depend upon a question of fact, it is conclusively presumed that the legislature took evidence in its determination, and the decision which it has reached will not be subject to review by the courts. The latter will ' confine themselves exclusively to questions appearing upon the face of the statute itself. Stevenson v. Colgan, 91 Cal. 649, 27 Pac. 1089, 14 L. R A. 459, 25 Am. St. Rep. 230; Lewis v. Colgan, 115 Cal. 529, 47 Pac. 357; Smith v. Mathews (Cal.). Says Judge Cooley (Const. Lim. [6th Ed.] p. 220) : "If evidence was required, it must be supposed that it was before the legislature when the act was passed, and if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such finding." This court has said, commenting upon this language: "This view seems to be sustained by the decisions of the highest courts of other states and is in harmony with the central idea of the Constitu- tion in prescribing the independence and equality of the three great cause accurate surveys to be made of the route of the proposed system of drainage, and after hearing parties in- terested, to decide whether in their opinion the public health or welfare would be promoted by the intended work, and if so, to classify the lands for as- sessment of benefits and taxes, to collect the same, to make contracts, in- cur obligations, sue for and enforce the collection of delinquent assessments and exercise other corporate powers, is one 124 "Water and Mineral Cases. [California departments of the state." Stevenson v. Colgan, supra. Speaking directly upon this subject-matter, the Supreme Court of the United States has said (Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 174, 17 Sup. Ct. 56, 69, 41 L. Ed. 369) : "It has been held in this court that the legislature has power to fix such a district for itself without any hearing as to bene- fits, for the purpose of assessing upon the lands within the district the cost of a local public improvement. The legislature, when it fixes the district itself, is supposed to have made proper inquiry, and to have finally and conclusively determined the fact of the benefits to the land included in the district, and the citizen has no constitutional right to any other or further hearing upon that question. The right which he there- after has is to a hearing upon the question of what is termed the appor- tionment of the tax, i. e., the amount of the tax which he is to pay." (b) Upon the amount of the tax which the landowner is to pay, the scheme by which that amount is to be apportioned and assessed has been outlined above. It will be remembered that, after disinterested persons have made their assessment, a notice of the time and place of the sitting of the board of drainage commissioners for the purpose of equalizing the assessment is to be given, the board is to hear complaints and correct errors, and its determination is declared to be final. It is insisted that this either creates a court or confers judicial powers upon executive and administrative officers, in violation of the constitutional provision of article 6, sections 1 and 5, of the Constitution. That the board sitting to equalize the assessments acts judicially must be conceded. The very purpose for which it sits is to act judicially for the correction of errors and abuses in the original assessment ; but to say that for this reason the legislature has attempted to create a court in violation of the Con- stitution is a proposition to which assent must be denied. Many acts, judicial in their nature, must of necessity be performed by the executive and administrative officers of the government. The decisions of such offi- cers upon any controverted question, upon any question even in which there is play for discretion, are in their nature judicial; but because this is so, and necessarily so, it does not follow that they are usurping the ex- clusive functions of the courts of the land, and, if they are not doing so, the power which they exercise may not thus be questioned. City councils and boards of supervisors annually fix the rates which water clearly granting certain corporate powers and privileges. The act seems to consti- tute the drainage commissioners, a cor- poration to accomplish and carry out the work of the proposed system of drain- age, but they are organized as quasi corporations for governmental purposes, in order to execute the police power of the state over a particular district for the promotion of the public health and welfare, and the act is not obnoxious to a provision of the Constitution prohibit- 1909] People ex eel. v. Drainage District. 125 consumers within their territories shall pay to the quasi-public corpora- tions furnishing such water. Here these boards are called upon to con- sider and decide controverted questions of fact of great moment and of much nicety. Their decrees fixing rates contain many of the elements of a judgment. They are binding determinations upon the water com- pany upon the one hand and upon the consumer upon the other. Yet, the power of these boards to exercise such quasi judicial functions has been upheld. Upon this very subject the Supreme Court of the United States, speaking through Chief Justice Waite, has said : "Like every other tri- bunal established by the legislature for such a purpose, their duties are judicial in their nature, and they are bound in morals and in law to exercise an honest judgment as to all matters submitted for their official determination. It is not to be presumed that they will act otherwise than according to this rule." Spring Valley Waterworks Co. v. Schot- tler, no U. S. 347, 4 Sup. Ct. 48, 28 L. Ed. 173. And, after quoting this language, that same court, speaking of the power of the board of supervisors under the irrigation district laws to pass upon the question of benefits, says : "In that case the board was to fix the price of water, while in this it is to determine the fact of benefits to lands. The principle is the same in each case." And, in this connection, it is declared that such a board, having the power to hear and determine the question of benefits, is a proper and sufficient tribunal to satisfy the constitutional re- quirements of due process of law. Fallbrook Irr. Dist. v. Bradley, 164 U. S. 169, 17 Sup. Ct. 67, 41 L. Ed. 369. And so in Hagar v. Rec. Dist., in U. S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569, where the same subject is under discussion, it is said: "But where a tax is levied on property not specifically but according to its value, to be ascertained by assessors ap- pointed for that purpose upon such evidence as they may obtain, a differ- ent principle comes in. The officers in estimating the value act judicially, and in most of the states provision is made for the correction of errors committed by them, through boards of revision and equalization, sitting at designated periods provided by law to hear complaints respecting the justice of the assessments. The law, in prescribing the time when such complaints will be heard, gives all the notice required, and the proceeding by which the valuation is determined, though it may be followed, if the tax be not paid, by a sale of the delinquent's property, is due process ing the legislature from enacting any special or private law granting corporate powers or privileges, except to cities. State ex rel. Baltzell v. Stewart, 74 Wis. 620, 43 N. W. 947 (1889). As to power of legislature to dissolve district, see note IV to Chicago B. & Q. R. Co. v. Board of Supervisors of Appanoose County, post, p. 478. Legislature may delegate power to districts, see note III, B, 4, to Chicago B. & Q. R. Co. v. Board of Supervisors of 126 Water and Mineral Cases. [California of law." Against a fraudulent exercise of this power, recourse may, of course, be had to the courts. Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237. But, otherwise, the requirement of due process of law is satisfied in the creation of this tribunal, with the powers conferred upon it to hear and correct errors and abuses, upon reasonable notice to the prop- erty owner. 6. The members of the board of drainage commissioners, as the board is constituted, are not disqualified by interest to act as a tribunal to hear objections to the assessment by reason of the fact that they are land- owners within the district. Members of the boards of supervisors and of city councils, in adjusting water rates, are themselves consumers, and to that extent have an interest in the subject-matter of their decision; but they are not therefore disqualified. The principle is the same in this case. Hamilton, Special Assessments, 138; Hibben v. Smith, 191 U. S. 310, 24 Sup. Ct. 88, 48 L. Ed. 195. 7. Nor is there a double tax upon the land. The special assessment for benefits is upon the theory that, to the amount of such assessment, the land is directly benefited. Such general tax as the land may pay to the state stands upon an entirely different foundation. The owner of land fronting upon a street, who is assessed for special benefits for the street work, does not suffer double taxation when that land is assessed, and is again subject to general tax by the city or state, even though a portion of the money so derived should go to the maintenance of the highway in front of his property. 8. The act in terms does not attempt to impair the obligation of exist- ing contracts. The state has the undoubted right to vary its plans for the reclamation of these lands, and in so doing to create new or different agents and mandatories. If in the operation of its new laws an attempt should be made to impair vested rights, the attempt, upon proper showing before a court, would unquestionably be held nugatory. 9. No violence is done by the act to the constitutional inhibition against requiring a property qualification for a voter. Const, art. 1, sec- tion 24. This objection is completely disposed of by People v. Rec. Dist. 551, 117 Cal. 114, 48 Pac. 1016. The assessments are for local improve- ments, not for general purposes of taxation, and the legislature permits the landowners to appoint their own agents. The method which it im- poses upon the landowners in making the selection is wholly within its Appanoose County, post, p. 475. As to power to establish drain being statutory, see note VII to Seibert v. Lovell, post, p. 264. As to what are swamps and overflowed lands see note I, to Hull v. Sangamon River Drainage District, post, p. 594. 1909] People ex kel. v. Drainage District. 127 control ; for, as has been said, it is not compelled to give the landowners any voice in that selection. We have thus discussed all the points advanced upon appeal and perti- nent to this consideration under quo warranto. The questions presented arise upon the rulings of the court in striking out portions of the petition and in sustaining a general demurrer thereto. For the reasons above given, the rulings complained of were correct, and the judgment appealed from is affirmed. We concur : MELVIN, J. ; SHAW, J. ; ANGELLOTTI, J. ; SLOSS, J. ; LORIGAN, J. The CHIEF JUSTICE, being a partner interested as a landowner within the boundaries of the Sacramento Drainage District, did not par- ticipate in the foregoing. 128 Water and Mineral Cases. [California DUCKWORTH et al. v. WATSONVILLE WATER & LIGHT CO. et al [Supreme Court of California, August 25, 1910; rehearing denied, September 24, 1910.] 158 Cal. 206, 110 Pac. 927. 1. Pleading — Amendment — Error in Allowing Harmless. The allowance of an amendment of an answer to a cross-complaint, denying specifically certain allegations, is, if erroneous, harmless where the original answer admitted the cross-complaint only so far as it was not inconsistent with the affirmative allegations of the answer. 2. Waters and Water Rights — Evidence — Expert Testimony as to Existence of Lake. Opinion evidence as to whether a certain body of water was or was not a lake is inadmissible, the question being one which could be answered by any one properly informed regarding the definition of a lake and the facts and conditions surrounding the water, and therefore not a subject for expert testimony. 3. Same — Actual Appropriation Confers Right without Compliance with Code. The actual appropriation of water without compliance with the code provisions is enough to give the appropriator a right as against any one who did not have, at the time of his diversion, a superior right. 4. Same — Cannot Devest Prior Rights. Actual appropriation without compliance with the code provisions cannot devest prior rights, but will be good as against a subsequent appropriator. 5. Same — Compliance with Code — Rights Relate Back to Notice. Compliance with the sections of the code relative to appropriation are im- portant only in so far as the claimant seeks to have his rights relate back to the date of posting. G. Same — Cuts Off Intervening Rights. Compliance with code provisions will cut off rights accruing between the date of posting and the actual diversion for beneficial purposes. 7. Same — Actual Appropriation — Compliance with Code Not Necessary where no Intervening Rights. Where no rights have intervened, actual appropriation may be made without following the provisions of the code. 8. Same — Failure to Follow Code Immaterial. Where no claim of any right accruing between posting of notice and actual diversion and use of water is made, failure to follow the code provisions i3 immaterial. 9. Pleading and Practice — Findings upon All Issues. Where it is alleged that certain water and riparian rights were conveyed to a certain party, and by that party to defendants, defendants are entitled to a finding upon such issues so as to have the right vested under such conveyance protected by the decree. 10. Waters and Water Rights — Effect of Conveyance of. Effect of conveyance by landowner of all riparian and water rights and privileges except for domestic uses and irrigation, and for stock, is to convey all water and water rights and privileges of every kind, character, and descrip- tion which apply or in any manner pertain to the land, except those reserved. 1910] Duckworth et al. v. Water & Light Co. et al. 129 11. Same — Grantee of Vendor Estopped. The grantee of one who has conveyed all his riparian and water rights to a third party is bound by such conveyance, and is estopped from asserting any rights in conflict with the rights so conveyed. 12. Same — Appropriation First in Time Is First in Right. The law is thoroughly settled that as between two appropriators, the one first in time is first in right (per Shaw, J., concurring opinion). 13. Waters and Water Rights — Cannot Be Severed from Riparian Lands. Riparian rights exist solely because land abuts on water, and extend to all water which may be reached from the land, and not to any specific, particular or definite quantity or area of it. Water cannot be severed from riparian land and transferred to a third person so as to give title and the right to remove it as against other riparian owners (per Shaw, J., concurring opinion). 14. Same — Conveyance of Water Rights — Estoppel of Vendor. By conveyance of all his water rights, riparian owner is absolutely estopped to use any part of water on land except as reserved in the conveyance. Action involving the rights of the parties to the waters of a certain lake. Decree confirming certain rights to each of the parties. Reversed For appellants— Chas. Shurtleff and H. C. Wyckoff. For respondents — Netherton & Torchiana. SLOSS, J. The first trial of this action, which involves the rights of the parties to the waters of Pinto Lake, in Santa Cruz County, resulted in a judgment declaring that the plaintiffs had a prior right to take as much water as they could beneficially use upon their land, not exceeding a continuous flow of 250 miners' inches. Upon an appeal to this court, the judgment was reversed, for reasons stated in an opinion reported in 150 Cal. 520, 89 Pac. 338. The facts giving rise to the con- troversy and the relative situations of the parties and their property are set forth in that opinion, and need not be restated here. Upon a second trial, the superior court gave judgment declaring that the Watson- CASE NOTE. Rights of Appropriator of Water Not Complying with the Statute as against One Subsequently Comply- ing Therewith. The object of statutes requiring the giving of notice by posting, recording, etc., of intention to appropriate waters, is to give information of such inten- tion to persons subsequently intending to appropriate the same waters, and to fix a time at which the rights of the appropriator giving such notice shall W. & M.— 9 commence, provided he diligently pros- ecutes the work of diversion and within a reasonable time puts the water di- verted to a reasonable use. When this is done, the rights relate back to the time of the giving of notice. The giving of such notice, however, is not essential to an appropriation of waters; by an actual appropriation and diversion the same object is even better accomplished and the giving of notice and taking of the other steps provided by the statute can have no effect upon the rights of one* who prior thereto had made actual 130 Water and Mineral Cases. [California ville Water & Light Company has the right, as riparian owner, to divert and apply on its land riparian to said lake ten miners' inches of water; that it has the right, by virtue of appropriation, to divert forty miners' inches for a beneficial purpose or use; and that, subject to these rights of the said water and light company, the plaintiff S. J. Duckworth has the right to divert 142 miners' inches of water from Pinto Lake for bene- ficial purposes. Each of the said parties is enjoined from interfering with the rights of the other as above defined. The defendants now ap- peal from this judgment and from an order denying their motion for a new trial. A preliminary question should be disposed of before proceeding to a consideration of the merits. In its cross-complaint, the Watsonville Water & Light Company alleged that it was the owner and entitled to the exclusive use of all the waters contained and flowing in Pinto Lake. The plaintiff answered this allegation in a form that was declared by this court, on the former appeal, to be to a certain extent evasive. The appellants now complain of the action of the court below in making an ex parte order, after the reversal of the first judgment by this court, per- mitting the plaintiffs to amend their answer to the cross-complaint by denying specifically the aforesaid allegation. It is unnecessary to con- sider whether this order was erroneous. The amendment made no material change in the issues. Under the original answer, the allegation that the cross-complainant owned all the water of the lake was, as is pointed out in the former opinion, admitted only in so far as such allega- tion was not "inconsistent with the affirmative allegations of the answer." See 150 Cal. 530, 89 Pac. 343. One of these allegations was that plain- tiff S. J. Duckworth "has a right to and an interest in said waters * * * as an appropriator." He claims here only as such appropria- tor, and the order permitting him to amend was, therefore, if error, harmless. appropriation and use of the water, al- though he took none of the steps pre- scribed by the statute. Duckworth v. Watsonville Water & Light Co., princi- pal case; De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198 (1889); Burrows v. Burrows, 82 Cal. 564, 23 Pac. 146 (1890); Alta L. & W. Co. v. Hancock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217 (1890) ; Wells v. Man- tes, 99 Cal. 583, 34 Pac. 324 (1893); Watterson v. Saldunbehere, 101 Cal. 107, 35 Pac. 432 (1894); Senior v. Anderson, 115 Cal. 496, 47 Pac. 454 (1896); Duckworth v. Watsonville Water & Light Co., 150 Cal. 520, 89 Pac. 338 (1907); Murray v. Tingley, 20 Mont. 260, 50 Pac. 723 (1897). The actual diversion and use of water without a compliance with the statute gives a right to the continued use thereof as against one whose right of purchase of the land vests after di- version is fully completed. De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198 (1889). One who diverts water upon public unoccupied lands of the United States 1910] Duckworth et al. v. Water & Light Co. et al. 131 The appellants attack the sufficiency of the evidence to sustain a find- ing "that Pinto Lake, its tributaries and outlet, is part of a running stream." This finding followed the verdict of an advisory jury to which certain special issues had been submitted. A similar finding had been made at the first trial. Upon the former appeal we said, in answer to an objection like the one now made, that we could not "agree with the appellant in his contention that the finding that the lake, or its tributaries, constituted a running stream, is not sustained by the evi- dence." The showing in support of the finding contained in the present record is quite as strong as that before this court on the earlier appeal. Without giving to the view heretofore expressed by us binding force as the "law of the case" (see Allen v. Bryant, 155 Cal. 256, 100 Pac. 704, and cases cited), we are, after reconsideration, satisfied with that view, and shall apply it to the present appeal. In disposing of this point, it may be well to advert to the alleged error of the trial court in declining to permit appellants' witnesses to state whether, in their opinions, "Pinto Lake is a lake." We think that the objection that the question called for expert testimony on a matter not properly the subject of expert testimony was well taken. The facts and conditions observed by the witnesses had been fully described. Whether the subject of their observation and testimony constituted a water course or a body of standing water was a question which could be answered by any one who was properly informed regarding the definitions of the respective terms. The distinction between a stream and a lake was, pre- sumably, correctly declared to the jury as matter of law. The ultimate question whether or not there was a running stream was to be answered "by the jury, acting under proper instructions or by the court itself. The court found that the Watsonville Water & Light Company is the riparian owner of a strip of land bordering the lake; that five and from its natural course, and conveys it through ditches and flumes to a dis- tant point and uses it for irrigation, mining or manufacturing purposes, has a perfect right to the water actually appropriated as against all the world except the owner of the soil and those claiming adversely who have complied with the law, and this whether the diversion was made before or after the taking effect of the code provis- ions regarding notice, etc. De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198 (1889). The actual diversion and use of water without the giving of notice confers a right thereto as against pre-emptioner of public lands. De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198 (18S9); Burrows v. Burrows, 82 Cal. 564, 23 Pac. 46 (1890). A statutory appropriation is not necessary to acquire- ment of the right. Alta L. & W. Co. v. Hancock, 85 Cal. 219, 25 Pac. 645, 20 Am. St. Rep. 217 (1890). The posting of notice and proceed- ings thereunder, as (required by the statute, will give no right to the use 132 Water and Mineral Cases. [California one-half acres of said land is capable of cultivation ; and that not more than ten inches of water could be used for the irrigation of this land. It found, further, that since 1901 the said company has diverted forty inches of water from Pinto Lake, and that this water has been sold by the company and applied to lands nonriparian to Pinto Lake. The plaintiff S. J. Duckworth has succeeded to the interest of his wife, Flora McKinley Duckworth, who was originally joined with him as plaintiff. It is found that prior to the commencement of the action, said S. J. Duck- worth posted on the bank of the lake a notice of appropriation, giving notice that he proposed to appropriate 250 inches of water from said lake. The recording of the notice and the commencement and prosecu- tion of the necessary work are found. There is a rinding that plaintiff has actually appropriated and diverted from the lake 142 inches of water, and applied it to the beneficial purpose of irrigating a portion of his land, and that this diversion has not materially increased the cost to the water and light company of taking water from the lake. If these findings stood alone, and if all of them were sustained by the evidence, the judgment establishing the rights of the parties as here- inabove stated would appear to be free from objection. The appellants question the sufficiency of the evidence to support some of these findings. It is claimed, in the first place, that there is no evidence that the plain- tiff's notice of appropriation was ever recorded. This claim appears to be well founded. An examination of the bill of exceptions fails to disclose any showing on this point. A further attack on the sufficiency of plaintiff's appropriation is that the notice designated a six-inch pipe as the means of diversion, whereas the diversion was in fact made through a twelve-inch pipe. On the former appeal the question whether the use of a larger conduit than the one specified would vitiate a notice of water as against one who has there- tofore actually diverted and appro- priated it to a beneficial use. Wells v. Mantes, 99 Cal. 583, 34 Pac. 324 (1893). The law is now settled that where there has been an actual appropriation of water, a right to it is acquired with- out following the course laid down in the code. Watterson v. Saldunbehere, 101 Cal. 109, 35 Pac. 432 (1894). Giving of notice is not essential to a valid appropriation of water, which may be by actual diversion for some bene- ficial use. Senior v. Anderson, 115 Cal. 496, 47 Pac. 454 (1896). Where one has completed the diver- sion of water before any rights in the land are acquired by another, the ap- propriation will hold good as against the latter. Taylor v. Abbott, 103 Cal. 421, 423, 37 Pac. 408 (1894). The appropriation of water under the California Civil Code has only the effect of giving the appropriator a right superior to that of any subse- quent appropriator on the same stream, and he acquires thereby no rights what- ever as against rights existing in the water at the time his appropriation was be^un. Duckworth v. Watsonville 1910] Duckworth et al. v. Water & Light Co. et al. 133 of appropriation was expressly left open for the reason that it was not presented by the record. We do not think a decision of this question is required by the state of the case as it now appears. Let us assume that no rights can be founded on the notice, whether for want of re- cording or for failure to state correctly the size of the pipe through which water was to be diverted. Civ. Code, § 141 5. The plaintiff did, however, actually divert and apply to a beneficial use 142 inches of wa- ter, as is found by the court on sufficient evidence. Such actual appro- priation, without compliance with the code provisions, is enough to give him a right as against any one who did not have, at the time of the diver- sion, a superior right. It cannot devest prior rights, but it will be good as against a subsequent appropriator. Wells v. Mantes, 99 Cal. 583, 34 Pac. 324; Watterson v. Saldunbehere, 101 Cal. 107, 35 Pac. 432. Com- pliance with the sections of the code relative to appropriation are im- portant only in so far as the claimant seeks to have his right relate back to the date of posting. Civ. Code, § 141 8. Such compliance will cut off rights accruing between the date of posting and the actual diversion for beneficial purposes. If no such rights have intervened, the actual appropriation may be made without following the provisions of the code. De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198 ; Bur- rows v. Burrows, 82 Cal. 564, 23 Pac. 146 ; Wells v. Mantes, supra. In the case at bar the prior rights of the water company as riparian owner and senior appropriator, so far as it was found to have such rights, were fully recognized and preserved by the decree. The company claimed no right accruing between the posting of the notice and the actual diversion and use by Duckworth. The failure to follow the code provisions is therefore immaterial. The appellant water company claims, however, that under its prior appropriation it was entitled not only to the forty inches of water which it had actually diverted and applied to beneficial uses, but to a further Water & Light Co., 150 Cal. 520, 89 Pac. 338 (1907); Duckworth v. Watsonville Water & Light Co., principal case. Where an actual appropriation and diversion of the water take place prior to the posting of notice, the posting of the notice and the other steps under the statute are immaterial. The right vested upon the actual diversion and beneficial use of the water. Brown v. Newell, 12 Idaho 166, 85 Pac. 385 (1906). A valid water right may be acquired even where there has been no compliance with the statutes, where water has been actually diverted from a stream by means of a ditch, and applied to a beneficial use in the absence of the inception of any adverse statutory claim. Murray v. Tingley, 20 Mont. 260, 50 Pac. 723 (1897). Where an appropriation is made by en actual diversion and use and there- after a statutory notice is filed but nothing further is done under it, the rights of the appropriator are fixed by his actual appropriation and he gains no new rights by the notice. Smyth v. Neal, 31 Or. 105, 49 Pac. 850 (1897). 134 Water and Mineral Cases. [California quantity as a reserve or emergency supply for the city of Watsonville, to be drawn on in case of accident to the pipe line from which said city is usually supplied. By an amendment to the answer the defendants alleged that the water company had connected the pipe leading from the lake with a reservoir connecting with its system of pipes supplying the city of Watsonville for the purpose of appropriating the waters of the lake for the furnishing a reserve for such emergency uses. We do not see that this fact in and of itself could give the company a right to any- thing in excess of the forty inches. The only diversion alleged was one of forty inches through a fifteen-inch pipe, and the water taken through such pipe was applied, as the answer states, to two beneficial purposes, i. e., the irrigation of lands and a reserve or emergency supply. But the total amount claimed to have been diverted for both purposes was forty inches, and the company's prior right to take this amount is recog- nized by the decree. The appellant water company claims further that it had, by virtue of certain deeds, rights which were prior and superior to any right of Duckworth to use the waters of Pinto Lake on his land except for domestic purposes and the watering of stock. The answer avers that in 1885, while Carmen Amesti de McKinley was the owner of the land now owned by plaintiff, and upon which he is apply- ing the water claimed by him as appropriator, she conveyed to the defendants Smith and Montague, all and singular the water and riparian rights and water rights and privileges of every kind, character, and description, which belong or in any manner pertain to said land, save and except the necessary water for domestic and culinary purposes and the watering of stock. The court made a finding in support of this allegation. There is, however, no finding upon the further aver- ment of the answer that in January, 1897, Smith and Montague conveyed to the Watsonville Water & Light Company all the rights so conveyed to them by Mrs. McKinley. The defendant corporation was entitled to a finding on this issue, and if the finding was in its favor, to have Assuming that no rights can be vested by notice of appropriation for want of record, or for failure to state correctly size of pipe through which water is to be diverted, where the appropriator does actually divert and apply to a beneficial use a certain amount of water, such actual appropriation, without compliance with the statute, is enough to give him a right as against any one who did not have at the time of the actual diversion, a superior right. It cannot devest prior rights, but it will be good as against a subsequent proprietor. Duckworth v. Watsonville Water & Light Co., princi- pal case. Compliance with the statute relative to appropriation is important only in so far as the claimant seeks to have his right relate back to the date of posting. Such compliance will cut off rights ac- cruing between the date of posting and the actual diversion for beneficial pur- poses. If any such rights have not inter- 1910] DUCKWOETH ET AL. V. WaTEK & LlGHT Co. ET AL. 135 the rights vested in it under said deed protected by the decree. The plaintiff claims title as successor in interest to Mrs. McKinley, and as owner of the land is bound by her deed to the same extent that she was. The purpose and effect of the conveyance was to transfer to the grantees whatever right the grantor had to apply the waters of Pinto Lake to the land of the grantor, except for domestic uses and irrigation of stock. The instrument conveys not only riparian right, but all water and water rights and privileges of every kind, character, and description which belong or in any manner pertain to said land. The right, or one of the rights, now asserted by Duckworth, is to apply the waters of Pinto Lake to the irrigation of the same land. This is a right which has been transferred by his predecessor in interest to the defendant, and he is, by virtue of her deed, estopped from asserting it in antagonism to her grantees. It is of no consequence that he bases his claim upon a so-called "appropriation," made subsequent to the deed. An appropria- tion under our statute, has only the effect of giving the appropriator "a right superior to that of any subsequent appropriator on the same stream. But he acquires thereby no right whatever as against rights existing in the water at the time his appropriation was begun. An appropriation does not of itself deprive any private person of his rights ; it merely vests in the appropriator such rights as have not previously become vested in private ownership. * * *" Duckworth v. Watsonville Water & Light Co., 150 Cal. 520, 531, 89 Pac. 338, 343. But if Duckworth, in apply- ing waters for the benefit of his lands, were to be given priority over the use of the same waters by the Watsonville Water & Light Company, his appropriation would have the effect of taking away from said company a part of the very right which had been transferred by plaintiff's prede- cessor, so far as she was capable of transferring it. That grant was, of course, not effective to convey any right not owned by the grantor or owned by third parties. It was however, effective as an estoppel on the grantor and her successors, preventing them from objecting to any use by the water company of water which might, in the absence of the deed, vened, the actual appropriation may be made without following the provisions of the statute. Duckworth v. Watsonville Water & Light Co., principal case. More definite information for his guidance is furnished a party contem- plating the appropriation of water by an actual diversion thereof than could be obtained from any notices provided by statute. Wells v. Mantes, 99 Cal. 583, 34 Pac. 324 (1893). Where appropriator claims no right accruing between posting of notice and actual diversion and use of water, failure to follow the statutory provisions as to appropriation is immaterial. Duckworth v. Watsonville Water & Light Co., prin- cipal case. The simple act of appropriation under the statute will not of itself defeat or extinguish any prior right. Alta L. & W. Co. v. Hancock, 85 Cal. 219, 24 Pac. 645, 20 Am. St. Rep. 217 (1890). The appropriation does not of itself 136 Water and Mineral Cases. [California have been applied for the benefit of the McKinley land. That it oper- ated as such estoppel so far as plaintiff's riparian right is concerned was expressly held on the former appeal, where we said that, because of said deeds, "the water company can use the water for any purpose, at any place, and in any quantity which leaves plaintiffs enough for stock and domestic purposes." It is true that in the same opinion we said that "Duckworth claims a right to a part of the water by appro- priation, and with respect to the right thus claimed he has a status which entitles him to challenge the right of the water company. His privity with the McKinley deed does not estop him from making an appropria- tion of any water in the lake that may be subject to appropriation, nor from demanding that the water company shall not make a greater use of the water than it is authorized to do by the rights which it is shown to have, if such use interferes with an appropriative right by him." But in this passage we were speaking of the general right to appropriate water for use upon land other than that owned by the grantor of the deeds. It was intended to declare merely that the making of the deeds did not prevent the maker or her successors from appropriating water. Whether Duckworth had any right as appropriator was not decided, nor was it decided that he could, notwitstanding the grant of all water and water rights belonging or pertaining to certain land, make an appropriation for use upon that very land, which should be good as against the grantees or their successors. For the reasons above stated, we think it must be held that he could not appropriate for that purpose. The right which he claims is the right to take water and use it upon his land. That right has been conveyed to the defendant, and the plaintiff cannot, in the face of his predecessor's deed, be permitted to revive it, or retake it by the mere device of entitling his taking an "appropriation." If upon another trial, it should be found that the rights conveyed to Smith and Montague are now vested in the water company, the latter is entitled to a decree declaring that it has a right superior to any claim of plaintiff to use water on the land mentioned in the deeds to take water from the lake in any quantity and for any purpose, provided enough is left for domestic purposes and stock on plaintiff's land. This right extends not only to the water actually heretofore taken by the water company, but to all which it may hereafter divert and apply to beneficial use. deprive any private person of his rights. It merely vests in the appropriator such rights as have not previously become vested in private ownership. Duckworth v. Watsonville Water & Light Co., 150 Cal. 520, 89 Pac. 338(1907) ; Duckworth v. Watsonville Water & Light Co., prin- cipal case. Before the adoption of the civil code in California, all that was necessary was the actual appropriation and use of water for the intended purpose, and no 1910] Duckworth et al. v. Water & Light Co. et al. 137 As a new trial will be necessary, we express no opinion upon the sufficiency of the evidence to support the finding that the cost to the water company of taking water has not materially increased since the diversion of 142 inches of water by plaintiff. The issue will have to be tried again, and the evidence relating to it may differ from that now before us. It may perhaps be unnecessary to add that the foregoing discussion has reference simply to the rights of the parties inter se. The right of third parties to take a part of the water of the lake, or to complain of a diversion by any of the parties to this action, is not here involved, and cannot be affected by anything here decided. Under the views herein expressed, the further points made by appel- lants do not, we think, require attention. The judgment and order denying a new trial are reversed. We concur: ANGELLOTTI, J.; LORIGAN, J. SHAW, J. I concur. There appears to have been some misappre- hension by counsel concerning the passage in the opinion upon the former appeal in this case relating to the status of Duckworth as an appropriator or user of water not taken under any claim of riparian rights. Having written that opinion, I take this occasion to state more fully what I con- ceive to be the true doctrine on that point. Duckworth was not at the time of the first trial the owner of the McKinley lands, but held a lease thereon. The notices of appropriation posted by him stated that he proposed to use the water upon other lands as well as upon that land. This reference to other lands may have been insufficient, under the code, as a designation of the place of intended use, and for that reason his notice of appropriation may have been void as to use on such other lands, or in toto, as a proceeding under the statute; but it was sufficient to show that he was claiming a right to divert water for use on lands other than the McKinley lands, which might ripen into a right by prescription, and as to these other lands he would not be estopped by the McKinley deeds to Smith and Montague. Now if Duckworth was at the time actually diverting water from the lake and using it on such other lands, not riparian, and the defendant company was also diverting water therefrom for use on nonriparian land, which, posting or record of notice was re- quired. De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198 (1889). As against one subsequently acquiring title from the government, an actual diversion and use of the water is limited to the extent and manner of such actual and completed diversion. De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198 (1889). As to appropriation and diversion of waters of springs, see note to Hollett v. Davis, post, p. 415. 138 Water and Mineral Cases. [California for the purposes of the discussion to which the passage from the former opinion was devoted, might have been the case as between them, in such a case the law is thoroughly settled that the one first in time is first in right. With respect to these possible antagonistic claims, therefore. Duckworth had the right to show, if he could, that his diversion and use on such other lands antedated that of the defendant, or any recent enlargement of its use by the defendant. We were then considering not the actual case, but the case as it might possibly develop under the pleadings, and it was this claim of right which was referred to in the former opinion in the expression "with respect to the right thus claimed he has a status which entitles him to challenge the right of the water com- pany." We did not say that he was entitled to prevail over the water company, but that he was in a position, with regard to or by virtue of the pleadings, to attack or to challenge the alleged right of the defend- ant, a position which made their alleged rights as users of water on non- riparian lands a material issue in the case as presented in the pleadings. It seems from the record before the court on the present appeal, that he does not now claim the right to use the water except on the McKinley lands. This being the case, all that was said on this subject on the previous appeal is inapplicable to the present case. Perhaps something more should be said regarding the effect of a con- veyance by the owner of riparian land, of his riparian right therein, to another for nonriparian use. The court below seems to have been of the opinion that the riparian right consisted of the ownership of a defi- nite quantity of the water of the lake, a quantity equal only to the amount which could be beneficially used on the riparian land concerned, and that the conveyance merely transferred to the grantees that quantity from the lake, leaving the riparian grantor free to take thereafter an equal or greater quantity therefrom and use it on the identical land, provided only that he must leave enough to furnish to the grantees the definite quantity which, by this theory, was conveyed, or if the grantees were using less, then enough to provide for their actual use from time to time. This was not the legal effect of the conveyance. The riparian right exists solely because the land abuts upon the water. It is parcel of the land. It extends to all the water which may be reached from the land, and not to any specific particles or definite quantity or area of it. It is the right to make reasonable use and consumption of the water on the adjoining land and to a reasonable use of the water in place, in As to transporting appropriated As to the formation of and various water through dry ravines, etc., see matters relating to irrigation districts, note to Lower Tulle River Ditch Co. v. see note to Pioneer Irrigation Dist. v.. Angiola Water Co., post, p. 280. Oregon Short Line, ante, p. 2. 1910] Duckworth et al. v. Water & Light Co. et al. 132 connection with and for the benefit of the land. The water cannot be severed from the land and transferred to a third person so as to give him the title and right to remove it, as against other riparian owners. The grantor alone will be estopped by such a conveyance. The estoppel against him with respect to the use and consumption of the water, or diversion from its natural position, must be as complete and extensive as was the right he conveyed. The McKinley deeds conveyed the entire right to use this water for irrigation on these lands to the defendant's predecessors, and it now belongs to the defendant, and not to Duckworth. A man may not eat his cake and have it. A man who sells a right to do a thing cannot thereafter exercise the right himself, except by permis- sion of the buyer, and it is immaterial that the buyer may not be using or exercising it. If the water company had obtained similar deeds from the owners of all the lands abutting upon the lake and its tributaries, it would have obtained a complete estoppel against such landowners, which would have prevented them from interfering with any use it saw fit to make of the water, and such estoppel would undoubtedly extend to all the water of the lake. If, having this right of estoppel, it chose to use only a part of the water, or none of it, this neglect to use it would not give any of the owners the right to take that which the company suffered to remain unused. A judgment which purported to give such owners the unqualified right to use the water on their respective tracts as against the company, would operate to deprive the company of the prop- erty which it had bought and paid for and to return that prop- erty to the person who sold it and received payment of the price. The same principle must apply when the estoppel has been ob- tained as to one only of the riparian owners. He is absolutely estopped to use any part of the water on the land, except as specified in the deed by which he is bound. These propositions are fully established by the following authorities : Alhambra, etc., Co. v. Mayberry, 88 Cal. 74, 25 Pac. hoi; Gould v. Stafford, 91 Cal. 155, 27 Pac. 543; Gould v. Eaton, 117 Cal. 542, 49 Pac. 577, 38 L. R. A. 181 ; Yocco v. Conroy, 104 Cal. 471, 38 Pac. 107; Lux v. Haggin, 69 Cal. 300, 310, 392, 4 Pac. 919, 10 Pac. 674; St. Helena W. Co. v. Forbes, 62 Cal. 184, 45 Am. Rep. 659; Zimm- ler v. San Luis W. Co., 57 Cal. 222; Farnham on Waters, §§ 462, 463; Gould on Waters, §§ 207, 215. 140 Water and Mineral Cases. [California DUCKWORTH et al. v. WATSONVILLE WATER & LIGHT CO. et al. [Supreme Court of California, February 8, 1907; rehearing denied, March 9, 1907.] 150 Cal. 520, 89 Pac. 338, 1. Riparian Owner — Right in Source Lakes. A lower riparian owner along an intermittent stream has no right in water standing in pools or lakes above his land; his right is limited to the water naturally passing his land for use on his land and he cannot transfer a greater light to one owning land on source lake. 2. Same — Extent of Right. A riparian owner of the greater part of a lake shore and bed has no right in the water by virtue of such ownership except for actual beneficial use on the riparian land. 3. Same — Purchaser of Right. One purchasing the rights of a riparian owner in a lake need not enter upon such owner's land in order to exercise the right but may take the water from any point in the lake. 4. Irrigation — Right by Prescription. The adverse user of water for the purpose of watering stock gives no right to use for irrigation or other purposes. 5. Appropriation — Running Stream. Evidence of the intermittent overflow of a lake together with a slight flow into the lake in dry season is sufficient to support a finding that the lake with its tributaries and outlet constitutes a running stream subject to appropriation. 6. Same — Former Grant — Estoppel. A riparian owner under a former holder who had granted the riparian rights to another is not estopped from making an appropriation nor from enforcing his rights as appropriator against the grantee of the riparian rights, subject to the terms of the prior grant. 7. Same — Prior Rights. The right to appropriate water exists wherever water exists unappropriated and free from superior claims, and an appropriation and use becomes effective against a private right only after five years' adverse user, and then only to the extent of the use. 8. Water Rights — Pleading — Negative Pregnant. An answer denying that a water company is the owner entitled to the ex- clusive use of all the waters of a lake is an admission that the water company is entitled to substantially all of the water. 9. Same — Notice. A notice of appropriation which states that the water is to be used on certain described land and upon other land not described, to be conveyed in "a six-inch pipe or by a pipe of other dimensions" is sufficient to authorize use on the land described through a six-inch pipe. 10. Acknowledgment — Certificate. A certificate of acknowledgment is sufficient which begins "State of California, Monterey County — ss" and recites that "before me, John Ruurds, notary public in and for Monterey County," etc., and is signed by him, with the words "notary public" following. 1907] Duckworth et al. v. Water & Light Co. et al. 141 Action to determine water rights by S. J. Duckworth and another against the Watsonville Water & Light Company and others. Judgment for plaintiffs. Defendants appeal. Reversed. For appellants— C. A. Shurtliff and H. C. Wyckoff. For respondents — Dickman & Torchiana and W. P. Netherton. SHAW, J. Plaintiffs are the owners of 320 acres of land front- ing on Pinto Lake; the plaintiff Flora being the owner of the fee, and the other plaintiff the owner of a leasehold interest. They claim rights in the waters of the lake as riparian proprietors thereon, and the plaintiff S. J. Duckworth also claims a right by appropriation to take therefrom a quantity of water equal to a continuous flow of 250 miners' inches under a four-inch pressure. The lake contains an area of about 70 acres. The defendant Watsonville Water & Light Company owns 65 acres of the bed and surface of the lake and all the land surrounding it, except the land of plaintiffs and two other tracts of small extent, and claims the ownership of, and the right to take and use, all the waters of the lake. The purpose of the action, as stated in the complaint, is to have the plaintiffs' alleged rights determined. The corporation defendant filed a cross-complaint, alleging ownership of all the water of the lake, and asking that its right be also determined. Judgment was given declaring that the plaintiffs have the right to take from the lake and use upon their land as much water as they could beneficially use thereon, not ex- ceeding a continuous flow of 250 miners' inches, and enjoining the de- fendants from interfering with the plaintiffs' right to such use, and that the defendant corporation take nothing by its cross-complaint. The defendants appealed from the judgment within 60 days after its rendition, and present the evidence in the record by a bill of exceptions. The plaintiffs derive their title to the land from Carmen Amesti de Mc- Kinlay, who, on May 13, 1901, leased the land to S. J. Duckworth, and on August 6, 1901, conveyed it to the plaintiff Flora McKinlay Duck- worth, subject to the lease. In 1885, while Carmen Amesti de McKinlay was the owner in fee of the land, she made conveyances to the defendants Smith and Montague, whereby she granted to them "all and singular the water and riparian and water rights and privileges of every kind, char- acter and description which belong, or in any manner pertain to," the 320 acres of land, the same being particularly described therein, re- serving, however, the right to water for domestic use and watering stock thereon. On January 21, 1897, Smith and Montague conveyed to the Watsonville Water & Light Company all the waters, right, and privi- leges conveyed to them by Carmen Amesti de McKinlay as aforesaid. 142 Water and Mineral Cases. [California Smith and Montague thereupon, so far as appears, ceased to have any interest in the property in controversy. They joined in the answer and join also in the appeal. There are some indications in the evidence that their holding prior to 1897 was for the benefit of the water company.- In any event, as they have no present interest, their position in the case need not be further discussed. It is claimed that the evidence does not sustain the findings. As to several of them, we think this contention is well founded. 1. There was an outlet to Pinto Lake, through which water usually flowed from the lake during the rainy season of each year, but which was dry at all other times. One Grimmer owned a tract of land which abutted upon this outlet at a point some distance below the lake. On March 21, 1903, Grimmer conveyed to S. J. Duckworth "all riparian rights and other water rights and water" which he possessed in this outlet as appurtenant or belonging to this tract of land. This conveyance was made after the beginning of the action, but before the filing of the cross-complaint, and in his answer to the cross-complaint Duckworth averred that by virtue thereof he was a riparian owner to the waters of the lake. The court found, in accordance with this answer, that the plaintiff S. J. Duckworth "is a riparian owner of the waters of said Pinto Lake, its tributaries and outlet," by virtue of this deed. Even if we consider the lake with its tributaries and outlet as forming one contin- uous stream of water, as the lower court found it to be, this finding is not technically true. Every owner of land upon a stream is, in some respects, interested in the entire stream. He has the right to use the wa- ter as it passes his land for domestic purposes thereon, and to take out a reasonable portion thereof for the irrigation of his abutting land, and for the protection of this right, which begins only when the water reaches his land. He has a certain right with regard to all the waters of the stream above his land — the right to insist that it shall not be polluted to his injury nor diminished from use by other riparian owners above, so as to deprive him of his just portion, and, perhaps, as to other than riparian owners, the right to prevent any substantial diminution of the amount of water which would naturally flow to his land. If nothing more than this was meant by the finding in question, we could not say that it was not supported by some evidence, nor that it was not a correct general statement of the right of Duckworth under the Grim- mer deed. But the finding is that Duckworth thereby became a "ripar- ian owner" of the waters of the lake, and it appears that, under it, he claims some right as against the defendant water company, to take water from the lake for use, not on the Grimmer land, but on the Duckworth land, which abuts on the lake far from the outlet, and that not only during 1907J Duckworth et al. v. Water & Light Co. et al. 143 the rainy season, or at such times as there is water flowing to the Grim- mer land, but during all seasons, and when the outlet is entirely dry. The court below seems to have intended this finding to declare some such right. This claim is contrary to the doctrine of riparian rights, and to the general principles of law as well. Neither a riparian proprietor nor an appropriator has title or ownership in the water of the stream before it reaches his land, or point of diversion, respectively. This has been expressly decided with respect to appropriators. Parks M. Co. v. Hoyt, 57 Cal. 46; Riverside W. Co. v. Gage, 89 Cal. 418, 26 Pac. 889; McGuire v. Brown, 106 Cal. 670, 39 Pac. 1060, 30 L. R. A. 384. The same rule applies to the riparian owner. As a riparian owner, Grimmer had no title to the water, except as it passed in front of his land and constituted the stream. The right or title to the stream as it passed was a part and parcel of his land, a part of the realty. See cases last cited. Being a part of his realty on his land, it was also part of the realty of other riparian owners at the points where it passed over their lands. Hence the title of each to the water exists only during such passage, and the right of each in the water during its course above consists only of the right to use such means as are necessary to preserve it until it reaches his land. Grimmer had the right to use a reasonable portion of the water running in the outlet by his land for the irrigation of his land riparian thereto, and to take the whole of it, if necessary, for domestic purposes. This right exists because the stream runs by the land, and thus gives the natural advantage resulting from the relative situation. When the stream ceased, and the channel became dry, he, for the time being, ceased to be a riparian owner, so far as a present use of the water was concerned. His land did not, at those times, border upon any stream. It did not then possess any natural right to the use of the water standing in pools or lakes at points above his land. During such dry periods, he could obtain the use of water from such pools or lakes only by convention with the owners of the lands abutting upon them. He would not have it by virtue of any right pertaining to his own land. Furthermore, his riparian right is limited to his riparian land. It gave no right to use any of the water of the stream for any purpose, upon land not riparian, nor upon any riparian land other than his own. No one can sell or convey to another that which he does not himself own. Grimmer could not, by a transfer of his riparian rights, sell to the plaintiff, as against third persons having interests in the water, the right to use the water upon any land, riparian or nonriparian, except his own, to which it originally attached. His deed operated to prevent him from com- plaining of a diversion, but it did not affect other parties. It does not appear that Grimmer had any water rights except his right as riparian owner to the use of the water of the outlet. It follows, therefore, that 144 Water and Mineral Cases. [California Duckworth did not obtain anything by the Grimmer deed except the right to use the water of the outlet on the Grimmer land, when any water was flowing therein, and an estoppel against Grimmer to prevent complaint by him against any use of such water which Duckworth might make to the injury of the Grimmer riparian right, as above defined. It did not in any respect add to his rights to take water from the lake for use on the Duckworth land, as against the defendants, or as against any one except Grimmer and his successors in interest. 2. The findings further state that the water company has never exer- cised or used any of the water rights derived from the deeds from Carmen Amesti de McKinlay to Smith and Montague. This is true in the literal sense that it has not used any water upon the land to which these rights, prior to those deeds, attached. But it appears from the evi- dence that the water company was pumping water from the lake during the eight years extending from December, 1894, to December, 1902. The amount is not shown, but it was enough, during part of the time, at least, according to the testimony of William A. White, its superin- tendent, to furnish water to several strawberry growers for irrigation of their plants, and so much that, if the plaintiffs took the 250 inches they claim, the two diversions would not leave much water in the lake at the end of the dry season. This evidence is not as definite as it should have been ; but, there being no evidence to the contrary, it established the fact that the company had taken a substantial quantity of water from the lake during the time specified. Such taking would have been contrary to the riparian rights attached to the Duckworth land, if they had re- mained unsevered therefrom. By reason of its purchase of these riparian rights, the company possessed the right, so far as that land and its own- ers were concerned, to use the whole, or any part, of the waters of the lake except such as were necessary for domestic use and for the water- ing of stock thereon. The pumping of the water was done in the exer- cise of this right, and it was a right obtained by virtue of the McKinlay deeds. This finding is therefore contrary to the evidence. 3. There is a finding to the effect that, after the execution of the deeds by Carmen Amesti de McKinlay to Smith and Montague, in 1895, she continued in possession of the water and water rights thereby granted to them, and that she and the plaintiffs, as her successors, did not re- linquish possession thereof to the grantees, but have ever since then re- mained in possession thereof, and that they had been in the open, notori- ous, hostile, and adverse possession thereof for more than five years immediately before the commencement of this action. This finding has no support in the evidence. They did, indeed, remain in possession of the land, and continued to exercise all ordinary acts of ownership over it, including the use of fne water of the lake for the watering of stock. 1907] DUCKWOKTH ET AL. V. WaTEK & LlGHT Co. ET AL. 145 This latter use of the water, however, was reserved in the deed, and hence it was not one of the rights granted. Even if it had been granted, the adverse use for the watering of stock alone could gain a right only to the extent of the use, and it would not confer any right to the addi- tional use of water for the irrigation of land. There is no evidence that Mrs. McKinlay, or either of the plaintiffs, ever made anv use of the water other than for the watering of stock, or claimed the right to- do so as against the defendants, until November, 1902, a few months before this action was begun. The finding seems to have been based on the fact that the defendants never entered upon the land of the plaintiffs for the purpose of exercising or asserting the right to use the waters of the lake which they obtained under the McKinlay deeds. But it was not requisite to the exercise of the rights granted by the deeds that they should enter upon the land, unless it became necessary to do so in order to get the water from the lake. The deed was evidently procured to protect the grantees from interference in their proposed diversion of water from the lake. They could get the water from any other point on the lake as well as from the limits of the McKinlay land, and it appears that they took it form the lower end of the lake. This was a taking from the McKinlay land, as well as from all the other land on the borders of the lake. The force of gravity would accomplish that. The use which was made of the land by the plaintiffs and McKinlay was not antagonistic to the right the defendants had to the water, under the grant. It is not true, there- fore, that the grantor and her predecessors continued or remained in pos- session of the rights of the grantee, nor that said rights were not re- linquished to the grantees, nor that the possession of the plaintiffs and their predecessor extended to the water rights granted, or was hostile and adverse to the grantee, or open and notorious with respect thereto. According to the evidence, their actual use of the water, if any, did not begin under their adverse claim, until the day of the trial in the lower court. 4. There is some evidence that Pinto Lake, with its tributaries and outlet, during the rainy season, constituted a running stream of water. It is clear that during the dry seasons there was no water flowing out of the lake, but there is evidence that during that period there was a slight flow from a tributary into the lake. We cannot agree with the appellant in his contention that the finding that the lake., or its tributaries, constitut- ed a running stream is not sustained by the evidence. We think the bet- ter doctrine, in respect to the character of a stream from which the stat- ute provides for appropriations, is that it is not necessary that the stream should continue to flow to the sea, or to a junction with some other stream. It is sufficient if there is a flowing stream ; and the fact that it ends either in a swamo, in a sandy wash in which the water disappears, or in a lake W. & M.— 10 146 Water and Mineral Cases. [California in which it is accumulated upon the surface of the ground, will not defeat the right to make the statutory appropriation therefrom, and we can see no reason why the appropriation, in such a case, may not be made from the lake in which the stream terminates, and which therefore constitutes a part of it, as well as from any other part of the water course. 5. The only use which the water company makes of the water is to take it to nonriparian lands to be used thereon for irrigation. Respond- ents claim that the only right of the water company to the water, shown in the case, consists of the riparian rights pertaining to the narrow strip of land belonging to the water company surrounding the greater part of the lake, and the riparian rights under the McKinlay deeds, and that the use made of it is not in the exercise of either of these rights, but is in- consistent with each of them. In regard to this claim it is to be observed that, so far as the use made of the water by the water company may affect the rights claimed by the Duckworths as riparian owners of the McKin- lay land, they have no ground of complaint, being estopped by the McKin- lay deeds, and not having regained the rights by adverse possession. The estoppel does not extend to the water necessary for domestic use and for stock, but their right to that extent is not in dispute, nor have they been deprived of it by the water company. But S. J. Duckworth claims a right to a part of the water by appropriation, and with respect to the right thus claimed he has a status which entitles him to challenge the right of the water company. His privity with the McKinlay deed does not estop him from making an appropriation of any water in the lake that may be sub- ject to appropriation, nor from demanding that the water company shall not make a greater use of the water than it is authorized to do by the rights which it is shown to have, if such use interferes with an appropria- te right possessed by him. But the claim that the water company has not established any other right is not maintainable. Its cross-complaint alleges that it is, and for a long time has been, "the owner and entitled to the exclusive use of all the waters" of Pinto Lake. The plaintiffs, in their answer thereto, deny that the water company is, or has been, "the owner and entitled to the exclusive use of all the waters" of the lake. That is not a good traverse of the allegation. It is an admission that the water com- pany is entitled to substantially all of the water. Fitch v. Bunch.. 30 Cal. 208; Blood v. Light, 31 Cal. 115 ; Fish v. Redington, 31 Cal. 185 ; Reed v. Calderwood, 32 Cal. \og ; Doll v. Good, 38 Cal. 287. This allegation of the cross-complaint, therefore, stands as an admitted fact of the case, ex- cept so far as it is inconsistent with the affirmative allegations of the an- swer thereto and of the original complaint. The effect, for the purposes of the trial, was to establish the fact that the water company owns and has the exclusive right to use, for any purpose and at any place, all of the water of the lake, excepting such portion thereof, or right thereto, as is 1907] DUCKWOKTH ET AL. V. WaTEK & LlGHT Co. ET AL. 147 alleged and was proven to belong to the plaintiffs or either of them. In- asmuch as the evidence did not show, and the court did not find, that the alleged claims of plaintiffs included all the waters of the lake, the judg- ment that the defendants take nothing is contrary to the evidence and to this admission of the pleadings. The existing rights of other riparian owners, not parties to this suit, are not material to this case. 6. The right to appropriate water, under the provisions of the Civil Code, is not confined to streams running over public lands of the United States. It exists wherever the appropriator can find water of a stream which has not been appropriated, and in which no other person has or claims superior rights and interests. And the right cannot be disputed except by one who has or claims a superior right or interest, and by him only so far as there is a conflict. It cannot be vicariously contested by another on behalf of the owner of the better right. The effect of an appropriation under the statute, when completed, is that the appropriator thereby acquires a right superior to that of any subsequent appropriator on the same stream ; but he acquires thereby no right whatever as against rights existing in the water at the time his appropriation was begun. An appropriation does not, of itself, deprive any private person of his rights. It merely vests in the appropriator such rights as have not previously be- come vested in private ownership either by virtue of some riparian right, or because of prior statutory or common-law appropriation and use. It affects and devests the riparian rights otherwise attaching to public lands of the United States, solely because the act of Congress declares that grants of public lands shall be made subject to all water rights that may have previously accrued to any person other than the grantee. An appro- priation of water and use thereunder does not become effective to devest private rights in the stream, unless it has been continued adversely thereto for the period of five years, under such circumstances as to gain a title by prescription, and then only to the extent of the use. The amount claimed in the notice is no measure of the right. It follows that the attempted appropriation by S. J. Duckworth of a part of the water of the lake did not devest or affect the existing rights of the water company either as riparian owners or by virtue of a prior appro- priation or use. And so far as his claim was adverse to, and in conflict with, the prior rights and interests of the water company, it was entitled to a decree quieting its title against him and enjoining him from asserting such adverse title. This applies to the riparian right which attached to its strip of land partially surrounding the lake as well as to any other prior right which it possessed to the water. The fact that the company had not used the water on this narrow strip did not affect the riparian right. A riparian right is neither gained by use, nor lost by disuse, and, for the protection of these riparian rights, the water company is entitled 148 Water and Mineral Cases. [California to a judgment declaring Duckworth's appropriation subject to the riparian rights pertaining to its lands and subject to all other prior rights of the water company, so that the continued use of the water by Duckworth shall not be adverse, and shall not ripen into an easement, which, in effect, would devest the rights of the water company. Moore v. Clear L. W. Co., 68 Cal. 146, 8 Pac. 816; Stanford v. Felt, 71 Cal. 249, 16 Pac. 900; Heil- bron v. Fowler S. C. Co., 75 Cal. 426, 17 Pac. 535, 7 Am. St. Rep. 183; Conkling v. Pacific I. Co., 87 Cal. 296, 25 Pac. 399 ; Walker v. Emerson, 89 Cal. 456, 26 Pac. 968; Spargur v. Heard, 90 Cal. 221, 27 Pac. 198; Anaheim U. W. Co. v. Fuller (decided 1907), 88 Pac. 978. 7. We have said that, because of the McKinlay deeds, and so far as the claim of plaintiffs as riparian owners is concerned, the water company can use the water for any purpose, at any place, and in any quantity which leaves plaintiffs enough for stock and domestic purposes ; but the mere fact that the company is a riparian owner on the lake gives it no right whatever to the water of the lake, except for actual beneficial use upon the land to which the riparian rights attach. The evidence does not show that it is using the water on that land at all. It is carrying the water to other lands and places, for use and sale. The admission of the plead- ings, above referred to, relieves it of the necessity of establishing its right to do this, except as it may be affected by evidence in support of the spe- cific rights alleged by the plaintiffs ; but the right it actually exercises is not a right derived from the fact of its riparian ownership of the greater part of the lake shore and bed. 8. The claim of the respondents that the grant by Mrs. McKinlay of the rights pertaining to the land described in the deeds extended only to the water then standing in the lake, and that as soon as that water was exhausted by use, run-off, or evaporation, the rights ceased to exist, is utterly baseless, and needs no discussion, further than to deny it. 9. In its conclusions of law, the court declared that the defendants are estopped from claiming any rights under the McKinlay deeds. We find nothing in the evidence justifying this conclusion. The plaintiffs did not make an adverse claim until November, 1902, and the water com- pany, about the same time, served on them written notice of its claim to the water under the said deed. This may not have been necessary, but it undoubtedly prevented any estoppel from arising in their favor by reason of any subsequent expenditure of money by them in the diversion of water in pursuance of their adverse claim, granting that such expend- iture would otherwise have created an estoppel. 10. We have said that the water company is entitled to a judgment protecting its riparian right, although it has not used, and does not immediately propose to use, the water on its riparian land. This rule does not apply to any right which it has acquired by appropriation or use 1907] DUCKWOETH ET AL. V. WATER & LlGHT Co. ET AL. 149 upon other lands, and this appears to be the source of the right which it has been exercising. Such right depends upon use, and ceases with disuse. Civ. Code, § 141 1. It extends only to the water actually taken and used. The consequence is that, so far as the protection of this right, and the water necessary to supply this use, are concerned, the water company is not entitled to prevent an appropriation or use by others of the surplus of the waters of the lake, if there is any. So long as there is enough to supply it with the quantity of water which it has been so using, it has, in the protection of this right, no concern with the disposi- tion of the remainder. It has the right, of course, to insist upon a rea- sonably ample quantity to last through the entire season, until rains re- new the supply, and also to enjoin a depletion of the lake which will lower the water surface so as to substantially increase the cost of making the diversion it is entitled to make. 11. It may be that, upon another trial, the sufficiency of the notice of appropriation posted by S. J. Duckworth may not be important ; but, as this cannot be decided here, it is necessary to notice the objections urged against it. The notice states that the water claimed therein is to be used for irrigation upon the land owned by Mrs. Duckworth, de- scribing it. This is a sufficient statement of the purpose for which the water was claimed and the place of intended use, and it is not vitiated by the additional statement in the notice that it was also to be used for irrigation by other parties to whom Duckworth might furnish it upon other land, which was not described. It was a good notice for the ap- propriation of water for use on the place designated, at all events. It states that the water is to be conveyed to the place of use "by a six-inch pipe, or by a pipe of other dimensions." This we consider sufficient to authorize a diversion of the quantity that could be carried in a six-inch pipe, and not exceeding the 250 miners' inches claimed as the maximum. Whether or not it would justify a diversion, within the amount limited, if carried in a pipe more than six inches in diameter, is a question not presented, inasmuch as it does not appear that such pipe was proposed to be used. 12. It is claimed by the respondents that they acquired their title from Mrs. McKinlay to the land in question by purchase for a valuable con- sideration, and without actual notice of the deeds to Smith and Montague, and that the record of those deeds is ineffectual to constitute constructive notice- to them, because the acknowledgment of each deed is defective. The acknowledgments were made before a notary public. The certifi- cates recite his name and official character in the usual form. They are signed by him, with the addition of the words "Notary Public" after his signature. The Code requires that the officer certifying to an acknowledg- ment must affix thereto his signature, followed by the name of his office. 150 Water and Mineral Cases. [California Civ. Code, § 1193. The objection is that the words "notary public" are not a sufficient statement of the name of the office. The certificates in question begin thus: "State of California, Monterey County— ss."— and each recites that "before me, John Ruurds, notary public in and for said Monterey County, personally appeared," etc. In view of this state- ment, we think the name of the office is sufficiently stated after the signature. There is nothing in Emeric v. Alvarado, 90 Cal. 479, 27 Pac. 356, that is in conflict with this conclusion. In that case the body of the certificate stated that the officer was a notary public of the city and county of San Francisco, while the name of the office after the signature was given as "Notary Public, Contra Costa County." The officer was in fact a notary public of Contra Costa County, and the acknowledgment was taken in that county, though the contrary was stated in the certificate. It was held that the certificate was invalid because it did not, in the body of it, truly recite the "name and quality of the officer" or the venue, as the law required, and that the words, "Notary Public, Contra Costa County," following the signature, were not sufficient to make it good. The two statements were inconsistent, and the certificate afforded no means of ascertaining which was correct. Here there is no inconsistency, and the statement after the signature, construed according to the ordinary usage of the language, and in connection with the recital, means that the person signing was a notary public of Monterey County. This is the proper construction, and therefore it does correctly state the name of the office, as the Code prescribed. In conclusion, we deem it proper to say that, upon another trial, if the court shall decide that either of the parties possess rights to the water, ac- quired by appropriation under the statute, or by diversion and use, it will be necessary to ascertain and declare the amount of water covered by the right owned by each respectively. It is not necessary to mention the other points discussed in the briefs. The judgment is reversed, and a new trial ordered. We concur: ANGELLOTTI, J.; SLOSS, J.; McFARLAND, J.; HENSHAW, J.; LORIGAN, J. 1910] Hall v. Hood River Irrigation District. 151 HALL v. HOOD RIVER IRRIGATION DISTRICT. [Supreme Court of Oregon, August 4, 1910.] — Or. — <—, 110 Pac. 405. 1. Waters and Water Courses — Irrigation Districts — Power to Issue Second Series of Bonds. Under section 4714 of the Code, as amended in 1909, irrisation district has power to issue additional bonds after having exhausted the funds received from a sale of bonds prior to amendment. 2. Municipal Corporations — Issuance of Bonds by Must Be Authorized by Statute. Municipalities cannot issue bonds unless authority to do so is expressly given or clearly implied. Action to enjoin the sale of bonds issued by irrigation company under provisions of B. & C. Comp., § 4714, as amended by Gen. Laws, 1909, p. 364. Judgment for defendant upon sustaining of demurrer. Affirmed. This is a suit by Charles Hall to enjoin the sale of a second bond issue of $75,000 issued by the Hood River Irrigation Company. The complaint alleges : "(1) That ever since the month of May, in the year 1905, the said defendant was and is now an irrigation district, duly organized and existing and doing business under and by virtue of the provisions of chapter 5 of title 39 of Bellinger & Cotton's Annotated Codes and Statutes of Oregon, and the amendments thereto. That said irrigation district is situated wholly within Hood River County, in the State of Oregon. "(2) That plaintiff at and during all the times herein mentioned was, and is now, the owner and holder of title to the following described real property situated in said district, to wit : Beginning at a point 780.3 feet south from the northwest corner of the N. W. *4 of section 17, township 2 N., range 10 E. of the Willamette meridian, said point of beginning being on section line in township 2 N., range 10 E. ; thence east 2,795.2 feet, south 471 feet, west 2,795.2 feet, to section line between sections 17 and 18; thence north 471 feet, to place of beginning, con- taining thirty acres of land more or less. "(3) That said defendant heretofore, between the month of August, in the year 1905, and the month of October, in the year 1906, for the purpose of constructing necessary irrigating canals and works and 152 Water and Mineral Cases. [Oregon acquiring necessary property and rights therefor, and for the purpose of carrying out the provisions of its organization duly and regularly, under and by virtue of the provisions of sections 4714, 4715, and 4716 of Bellinger & Cotton's Codes and Statutes of Oregon, duly and regularly issued and sold the bonds of said irrigation district to the amount of $100,000, and that said sum of $100,000 was expended by said defendant in constructing necessary irrigating canals and works and acquiring neces- sary property and rights therefor, and for the purpose of carrying out the provisions of said chapter 5 of said Bellinger & Cotton's Codes and Statutes of the State of Oregon. That said fund of $100,000 has been wholly exhausted by said expenditure, and the same was insufficient for the completion of the plans and works adopted. "(4) Tna t on August 9, 1909, the said defendant by and through its board of directors by resolution entered on its record, formulated a general plan of its proposed works in constructing its ditches and canals in which said general plan the said board stated in a general way what works and property it proposed to purchase and acquire, and what works it proposed to construct, and the estimated cost for carrying out said plans, and how it proposed to raise the necessary funds therefor, to-wit, by a bond issue and sale of the same. That for the purpose of ascertaining the estimated cost and value of such works said board caused surveys, examinations, and plans to be made to demonstrate the practicability of such plan, and to furnish the proper basis for an esti- mate of the cost of carrying out the same. That said surveys, examina- tions, maps, plans, and estimates were made under the direction of a competent irrigation engineer and certified to by him. "(5) That thereafter said board submitted a copy of said surveys, examinations, maps, plans, and estimates to the state engineer, and with- in ninety days thereafter the said state engineer made and filed a report upon the same with said board, which said report contained such mat- ters as in the judgment of the state engineer were reasonably necessary. That the report of the state engineer was received by said board in the month of January, in the year 19 10, and the said report of the state en- gineer was approved and accepted by said board, and said board on the As to bonds of drainage districts, see note to Sisson v. Board of Supervisors of Buena Vista Co., p. — , vol. 3, this series. As to issuance of bonds by irrigation districts in general, see parts III and IV, note to Pioneer Irrigation Dist. v. Oregon Short Line, pp. 43, 51, vol. 1, this series. As to the issuance of bonds by drain- age districts and various questions of the procedure therefor, legality thereof, etc., see note to Sisson v. Board of Supervisors of Buena Vista Co., p. , vol. 3, this series. As to constitutionality and legality of bond issues by irrigation districts and at- tacks thereon, see part III, note to 1910] Hall v. Hood Eiveb Irrigation District. 153 i st day of February, in the year 19 10, proceeded to determine the amount of money necessary to be raised at $70,000, and determined upon a bond issue to the amount of $70,000. And it was determined on February 1, 1910, by said board, for the best interests of said district to call a special election on the 26th day of February, in the year 1910, at Barrett school house in said irrigation district, to submit to the electors of said district the question of whether or not the bonds of said district in the sum of $70,000 should be issued for the purpose of building ditches and flumes, and the carrying out of necessary work and the payment of necessary costs and expenses to supply water to the landowners of said district for irrigating purposes. "(6) That the following notice of said election was posted in three public places in each election precinct in said district for twenty days prior to February 26, 19 10, and the same was also published in the Hood River Glacier, a newspaper published in Hood River County, Or., where the office of the board of directors of said district is kept, once a week for at least three successive weeks prior to said election: 'Notice of Special Bond Election, Hood River Irrigation District, February 26, 1910. Notice is hereby given, pursuant to order of the board of directors of the Hood River Irrigation District, that a special bond election will be held at the Barrett school house in said district, Hood River County, Oregon, on Saturday, the 26th day of February, 1910, at which time there will be submitted to the qualified electors of said district the question of issuing the bonds of the district in a sum not exceeding $70,000 (seventy thousand dollars) for the purpose of building ditches, flumes, and the carrying out of necessary work, and the payment of necessary costs and expenses to supply water to the landowners of said district for irrigation purposes. The polls will be opened one hour after sunrise of said day and will close at sunset of said day. Dated and first posted February 2, 19 10, by order of the board of directors of the Hood River Irrigation District. R. W. Kelly, Secretary, Hood River Irrigation District.' "(7) That said election was held as by law required, and that at said election there were a total of forty-eight (48) votes cast, forty-six (46) of which were 'bonds yes' and two (2) of which said votes were 'bonds no,' so that there were forty-six (46) votes in favor of bonds and two (2) votes against bonds. Pioneer Irrigation Dist. v. Oregon Short Line, p. 43, vol. 1, this series. As to irrigation districts in general, their formation, powers, duties, liabili- ties, etc., see note to Pioneer Irrigation Dist. v. Short Line, p. 2, vol. 1, this As to irrigation districts being public municipal corporations, see part I, par. H, note to Pioneer Irrigation Dist. v. Oregon Short Line, p. 14, vol. 1, this series. 154 Water and Mineral Cases. [Oregon "(8) That on the 28th day of February, in the year 19 10, the said board of directors met for the purpose of canvassing the returns of said election, and said board found that said election was duly and regularly had and held, and that there were a total of forty-eight votes cast at the election, forty-six for bonds and two against bonds, and the result of said election was declared and entered of record. "(9) That all the matters above set forth were declared of record by said board in its minutes. "(10) That said board are now proceeding to and threaten to, and will, unless restrained by this honorable court, sell the bonds of said dis- trict under and by virtue of the authority attempted to be vested in them by said election of February 26, 1910. "(11) That said bond issue is null and void, as said district possesses no authority by law or statute to issue or sell said bonds for the reason that it having already sold its first bond issue above mentioned, and hav- ing exhausted the proceeds of the same, there is no statute authorizing any further bond issue or sale. "(12) That plaintiff has no speedy, adequate or sufficient relief at law, and unless the court interfere and enjoin the said defendants from selling said bonds, the said plaintiff will be greatly and irreparably dam- aged, and the said bond issue and said bonds will be a cloud upon plain- tiff's title to said real property. "Wherefore plaintiff prays for a decree of court annulling and cancel- ing said bond issue, and plaintiff further prays that during the pen- dency of this suit the said irrigation district, its officers and agents, be enjoined and restrained from selling said bonds and from taking any further proceedings in the matter of the sale and issuance of said bonds, and plaintiff prays for such other and further relief as to the court may seem just and equitable." To this complaint a demurrer was interposed on the grounds that it did not state facts sufficient to constitute a cause of suit; and from a judgment sustaining the demurrer and dismissing the suit plaintiff ap- peals. For appellant — A. J. Derby. For respondent — Bennett & Sinnott. KTNG, J. (after stating the facts). The sole question presented by this appeal is whether, under B. & C. Comp., § 4714, as amended by chapter 219 of the General Laws of 1909, defendant is authorized after having exhausted the funds received from a sale of bonds issued under the section prior to the amendment, to make and sell an additional bond 1910] Hall v. Hood Eiveb Irrigation District. 155 issue. The plaintiff insists that this right is excluded by the amendment, while counsel for defendant maintains that this authority is clearly im- plied in the law as amended. Section 4714 of the Code, prior to amend- ment, so far as it bears upon this question, provided : "For the purpose of constructing necessary irrigating canals and works, and acquiring the necessary property and rights therefor, and otherwise carrying out the provisions of this act, the board of directors of any such district must, as soon after such district has been organized as may be practicable, and whenever thereafter the construction fund has been exhausted by ex- penditures herein authorized therefrom, and the board deem it necessary or expedient to raise additional money for said purposes, estimate and determine the amount of money necessary to be raised, and shall imme- diately thereafter call a special election, at which shall be submitted to the electors of such district possessing the qualifications prescribed by this act, the question whether or not the bonds of said district in the amount as determined shall be issued. * * * " The section as amend- ed reads: "For the purpose of procuring necessary reclamation works, and acquring the necessary property and rights therefor and otherwise carrying out the provisions of this act, the board of directors of any such district shall, as soon as practicable after the organization of such district, by a resolution entered on its record, formulate a general plan of its proposed (works) in which it shall state in a general way what works or property it proposes to purchase or acquire, and what work it proposes to construct, and the estimated cost of carrying out said plan, and how it proposes to raise the necessary funds therefor. * * * After specifying the manner in which the bonds shall be issued, etc., the amended section continues : "In case the money raised by the sale of all the bonds be insufficient for the completion of the plans and works adopted, and additional bonds be not voted, it shall be the duty of the board to provide for the completion of said plan by levy of assessments therefor, in the manner herein provided." It is settled law that municipalities cannot issue bonds unless the au- thority to do so is expressly given or clearly implied. 28 Cyc. 1575. Taking into consideration the italicized expressions in the above ex- cerpts, "and otherwise carrying out the provisions of this act," "what work it proposes to construct," "additional bonds," etc., we think it mani- fest that the defendant has brought itself within this rule. More es- pecially does it appear that this authority is implied when the phrases quoted, together with the general object to be obtained by the entire act, is examined in connection with a further statement in the amended sec- tion, to the effect that, after the first bond issue provided "for the pur- pose of procuring necessary reclamation works * * * and otherwise 156 Water and Mineral Cases. [Oregon carrying out the provisions of this act * * * " shall have been authorized at an election there specified, the board "thereafter" may "whenever * * * in its judgment" it is deemed "for the best interest of the district that the question of the issuance of bonds in said amount, or any amount, shall be submitted to said electors, it shall so declare of record in its minutes, and may thereupon submit such questions to said electors in the same manner and with like effect as at such previous election." To hold otherwise would, for obvious reasons, in many instances defeat the very purpose for which the law was enacted. We are of the opinion that the issue complained of is authorized bv the act as amended. The judgment is affirmed. 1910] Geay v. New Mexico Pumice Stone Co. 157 GRAY v. NEW MEXICO PUMICE STONE CO. [Supreme Court of New Mexico, August 16, 1910.] — N. M. — , 110 Pac. 603. 1. Mining Claim — Mechanics' Liens — Statement of Lien. Under Sec. 2221 of the Compiled Laws of 1897, providing that every person claiming a mechanic's lien must file for record with the county recorder of the county in which the property is situated a claim containing a statement of his demands, etc., with a statement of the terms, time given, and conditions of his contract, it is sufficient as against a demurrer to state that claimant agreed with the owner of the property to work for it for the sum of three dollars a day and board. 2. Same — Statement of Character of Labor. Statement in the claim of lien that it is for labor performed by the lien claimant in the construction of the mining claim on the land, is sufficient. 3. Same — Original Contractor. Every person who deals directly with the owner of the property and who in pursuance of a contract with him performs labor or furnishes material, is an original contractor within the meaning of the statute. 4. Same — Pleading — Demurrer. A separate demurrer by a subsequent incumbrancer directly raises the question whether the complaint and claim of lien states facts sufficient to constitute a cause of action against the defendant demurring. 5. Same — Constitutional Law — Attorneys' Fees, The statute allowing attorneys' fees upon foreclosure of mechanic's lien is constitutional. CASE NOTE. Services for Which Mechanics' Liens Are Allowed on Mining Claims. I. In General, 158. II. Law Not Retroactive, 158. III. As Superintendent or Manager, 158. IV. As Geologist and Expert, 160. V. As Amalgamator, 160. VI. As Bookkeeper, Cashier or Clerk, 160. VII. As Foreman, 161. VIII. As Watchman or Care- taker, 161. IX. In Extracting Ore, etc., 162. X. In Sinking Shaft, 162. XI. In Cleaning and Washing Gold, 162. XII. In Torpedoing Well, 163. XIII. In Working on Machinery or Tools, 163. XIV. General Labor in Lime Kiln, 163. XV. In Cooking for Men, 163. XVI. In Furnishing Laborers, 164. XVII. Under Contracts, 164. XVIII. In Building Elevator, 164. XIX. In Building Roads, 164. XX. In Hauling Quartz, 165. XXI. In Caring for Teams, 165. XXII. Incidental Labor, 166. XXIII. Work Done Away from Mine, 166. XXIV. In Prospecting, 166. XXV. At Request of One Other Than Owner, 166. XXVI. Apportionment of Lien, 167. XXVII. Lien Void in Part Void in Toto, 168. 158 Water and Mineral Cases. [New Mexico 6. Same — Character of Labor. Labor in working in a quarry