Opinion of the Court-Sullivan, C. J.

Real Property, 3, 4; Tiedeman, Real Property, sec. 2; 24 Cyc. 842; 18 Am. & Eng. Ency. Law, 140; Tiffany, Law Real Property, pp. 26, 515, 517; sec. 3056, Rev. Codes.)

The rule which the legislature has adopted in sec. 9a of the act of 1915 as a basis and test for determining whether or not lands should contribute toward the cost and expense of the drainage of low, seeped and water-logged lands is a proper one and valid. The rule of classification made by the legislature in determining what lands shall be subject to taxation for such purpose is well within the rule laid down by the cases. (Mathison v. Minnesota Str. Ry. Co., 126 Minn. 286, 148 N. W. 71, L. R. A. 1916D, 412, 418; Cameron v. Chicago etc. R. R. Co., 63 Minn. 384, 65 N. W. 652, 31 L. R. A. 553; Lommen v. Minnnesota Gas Light Co., 65 Minn. 196, 60 Am. St. 450, 68 N. W. 53, 33 L. R. A. 437; Quong Wing v. Kirkendall, 39 Mont. 64, 101 Pac. 250; State ex rel. Oregon R. & Nav. Co. v. Clausen, 63 Wash. 535, 116 Pac. 7, 65 Wash. 156, 117 Pac. 1101, 37 L. R. A., N. S., 466.)

The correct rule is that if a man chooses to perform acts or to have acts performed for his benefit, which even without fault upon his part injure another, the law may decree that the doer of the act shall assume the risk of the resulting damages, and it may fix the legal consequences of his act. (Western Indemnity Co. v. Pillsbury, 170 Cal. 686, 151 Pac. 398, 10 N. C. C. A. 1.)

SULLIVAN, C. J.-This is an appeal from an order of the district court sustaining the remonstrance of the Farmers' Co-operative Canal Company, a corporation (which will hereafter be referred to as the canal company), and the remonstrance of the Noble Ditch Company, a corporation (which will hereafter be referred to as the ditch company), against the assessments of benefits against the rights of way of each of said companies, by which order the court adjudged and held null and void such assessments, and ordered such assessments stricken and excluded from the report of the commissioners of Drainage District No. 1, Canyon county, which board of commissioners was appointed by said court for the

Opinion of the Court-Sullivan, C. J.

purpose of assessing the benefits to the several corporations and persons owning land and property in said drainage district.

The following facts appear from the record: After the organization of said district and the appointment of said board of commissioners, they entered upon the discharge of their duties. They employed an engineer and surveyor for the purpose of securing and compiling the necessary data, examined the lands included within the boundaries of the district, determined and assessed benefits against each tract of land, made their report to the court and asked for the confirmation thereof. In this report the commissioners assessed benefits against the respondent corporations, and thereupon said corporations filed remonstrances against the confirmation of said report and the lower court sustained such remonstrances and dismissed the proceedings as to said two respondents.

The report of said commissioners was made in conformity with sec. 9 of the drainage act of 1913. The report contains (1) the route and location of the proposed drainage system; (2) the estimated cost of the proposed works as $117,844; (3) the probable yearly cost of keeping the drainage district. in repair as $1,000; (4) a list of the lands that will be injured for right of way, etc., and the amount of such injury as $3,219.01; (5) the estimated aggregate benefits to the land within the district from the construction of said works as $589,220, and the list of the lands that will be benefited and the amount of such benefit set opposite the description of each tract; (6) a list of municipalities and corporations which the commissioners had determined would be especially benefited by the proposed drainage system, together with a description of the lands belonging to such corporations and the amount of benefits assessed against each; (7) a determination of the proposed permanent boundaries of the district.

The benefits assessed against the farm lands in the district range between thirty-five and forty dollars a year per acre, and the assessments thereon, between seven and eight dollars per acre.

Opinion of the Court-Sullivan, C. J.

It appears that the respondent corporations are irrigation corporations, owning canals which take water out of the Payette river and carry it in the main canals through the drainage district and deliver it to farmers farther down the valley. The canal company has a right of way within the district 7.61 miles in length and 100 feet in width and also a waste ditch 234 miles in length and two rods in width. The ditch company has within the district a right of way for its ditch 7.41 miles in length. A portion of it is 100 feet in width and the remainder 75 feet in width. The amount of benefits determined by the commissioners against the canal company was $100,000 and the assessment is one-fifth of that amount or $20,000, and the benefits to the ditch company, $50,000, and the amount of assessments $10,000, and the net benefits assessed against both companies result, quoting from the commissioners' report, in their "being relieved from responsibility for damages done to low lands from seepage, saturation by irrigation by water from canal on high land, and the necessity for carrying off waste water from canal."

The amount of the assessments against the respondent corporations is not an issue on this appeal. The sole question here for determination is whether or not assessments of the nature specified and made by the commissioners can be levied against such corporations, and the determination of that question requires a construction of the drainage act and its amendments.

The constitutionality of the act known as the drainage district law (see Sess. Laws 1913, p. 58), under which said drainage district was organized, was before this court in 1914. See In re Drainage Dist. No. 1 of Canyon County, 26 Ida. 311, 143 Pac. 299, L. R. A. 1915A, 1210, where it was held that said act is constitutional. In 1915 the legislature amended sections 7 and 24 of said drainage law and added thereto sec. 9a. (Sess. Laws 1915, p. 124.)

The commissioners determined from the information they had that the two respondent companies were largely responsible for the damage and injury to the lands within said drainage district, and based their assessments against them on the

Opinion of the Court-Sullivan, C. J.

theory and under the authority of sec. 9 of the original drainage law of 1913 (see Sess. Laws 1913, p. 63), and added section 9a, which was an amendement to the original act. (See Sess. Laws 1915, p. 124.)

Subn. 5 of sec. 9 of said act directs the commissioners to "apportion and assess the estimated cost of the same [drainage] on the lands so benefited by setting opposite the correct description of each tract, lot or easement, the portion of such cost assessed as benefits thereon . . . . and if any municipality or corporation should in their judgment bear a part of the expense or as such will derive a public or special benefit from the whole or any part of such proposed work, they shall so report and assess the amount of such benefits."

Under the provisions of that section the commissioners are given two grounds on which they may base assessments. First, against the land or any easement therein as such; second, against municipalities or corporations, on the theory that they may be especially benefited independent of any land owned or possessed.

In said report of the commissioners the respondent companies are listed as corporations receiving special benefits; but, on the other hand, the particular land they own within the district is described and the amount of assessment set opposite such description, so that the assessments can be considered either as being against corporations that are especially benefited or against the land owned by them that is benefited. The report of the commissioners is so framed as to make either provision of the law applicable to the respondents. In said report the nature of the benefits is specified substantially in the language of said added section 9a, which is as follows:

"In determining the amount which each tract of land will be benefited by such proposed drainage system the commissioners shall consider the damage done to low land from seepage and saturation by irrigation water from high land, and the necessity for the carrying off of waste water, and such high lands shall be considered as being benefited to the extent

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Opinion of the Court-Sullivan, C. J.

and in the amount that such lands are responsible for damage to low lands from seepage and saturation by irrigation water." It appears that the commissioners acted on the theory that subn. 5 of sec. 9, above quoted, and sec. 9a directed or commanded them to do as they have done in making said assessments, and that said provisions of sec. 9 required them to assess for the purpose of bearing a share of the cost of the construction of the proposed drainage works, lands that would be benefited, also all municipalities or corporations that would derive a public or special benefit from such works, and that sec. 9a declared the law or rule for equitable determination and assessing special benefits in cases where seepage or saturation by irrigation water contributed to the necessity for a drainage system.

The respondent corporations have filed separate remonstrances. That of the canal company is considerably longer than that of the ditch company, and contains some seventeen paragraphs, which include all of the objections urged by the ditch company and several additional ones. The principal objections presented by said remonstrances are substantially as follows:

1. That the canal company is a corporation, not organized for profit, and that it is simply a trustee for the farmers who use the water carried through the ditch, and that such water and the easement in the canal are appurtenant to the land irrigated, and therefore the canal company or corporation is not assessable separate and apart from the land using the water.

2. That inasmuch as the canal company has a waste ditch which not only cannot be benefited but will actually be destroyed by the drainage system, therefore the assessment against it is improper and void.

3. That the canal company's lands have not been assessed by setting opposite each tract of land the benefits assessed thereon.

4. That inasmuch as the estimated benefits to the canal company amount to about $1000 per acre, such assessment is arbitrary, unjust and therefore void.