| Idaho | Mar 24, 1927
Certain settlers filed with the court their petition praying the organization of Drainage District No. 3 in Ada county. Appellants protested, and the court made a temporary order organizing the district and excluding from the territory as proposed the New York Canal. Ultimately, the commissioners filed their report to which appellants filed an original and later an amended remonstrance. The issues were tried, and on July 8, 1924, the court rendered its order and judgment confirming such *808 report and finally organizing the district. Remonstrants have appealed from said order and judgment "confirming the report of the commissioners of Drainage District No. 3, and organizing the same, and confirming the assessments therein made and provided, and rendered judgment and made its order aforesaid in favor of said defendants and against said remonstrants and plaintiffs herein, and from the whole of said order and judgment." Errors assigned are: (1) The court erred in excluding the New York Canal and all of the interests therein in the temporary order organizing the district; (2) the court erred in holding and deciding that the water rights and interests of the individuals, canal companies and irrigation districts in the New York Canal do not constitute an easement; (3) the court erred in holding and deciding that the Oregon Short Line Railroad right of way did not contribute to the seepage and saturation of the wet area and for that reason should not be assessed for damages or benefits; (4) the court erred in confirming the stipulation of counsel for the district and the Oregon Short Line and Artesian Water Company in which the Short Line was relieved from assessment and its lands excluded from the district and the benefits of the water company fixed by stipulation; (5) the court erred in confirming the report of the commissioners.
Assignments 1 and 2 can be considered together. Remonstrants concede in their pleadings that at the time of the hearing the United States government had purchased the New York Canal, and was operating the same. They further alleged, and it was not denied, that under the agreements of purchase the government was delivering to the stockholders of the New York Canal waters for some 26,000 acres, and that in addition it was furnishing through the canal water for various and divers irrigation districts, including the Boise Project, comprising in itself some 143,000 acres. They plead that the government held title to the canal property as trustee for the settlers on the Boise Project and that the canal was contributing seepage to the *809 lowlands within the district. In view of these facts, it is contended that the rights of the respective water users to have water delivered them through this canal constituted easements which under the statute were subject to assessment for their proportionate part of the seepage.
While it is true that the right of each settler to receive water through a ditch constitutes an easement, this is not the easement subject to assessment as contemplated by the statute, C. S., sec. 4504, which requires that the assessment shall be set opposite the correct description of each tract, lot or easement; evidently having in mind a visible and tangible entity capable of being described by metes and bounds. This was recognized in Burt v. Farmers' Co-op. Irr. Co.,
"The rights of way of respondents are easements, but are permanent in their nature and are of such character that their owners have exclusive and continuous possession and control thereof. New Mexico v. United States T. Co.,
The right of way is the easement to be taxed under the statute, not the easement of the settlers incidental thereto. Since the United States government owned the right of way in question, no assessment could be levied against it; and there was no error in the court's excluding it from the district.
Assignments of error 3 and 4 may likewise be considered together. The lands of the Oregon Short Line were not *810
excluded from the district. The findings and decree refer to them as within the district and the given boundaries include them, but the court specifically found that such lands did not contribute to the seepage, were not benefited and therefore were not subject to assessment. Upon what theory could they have been assessed? Counsel argues that under the doctrine announced in Oregon Short Line R. R. Co. v. Pioneer Irr. Dist.,
" 'We construe the law to mean that the board may include in the boundaries of the district all lands which in their naturalstate would be benefited by irrigation and are susceptible of irrigation by one system, regardless of the fact that buildings or other structures may have been erected here and there upon small lots, which are thereby rendered unfit for cultivation at the same time that their value for other purposes may have been greatly enhanced.' "
The Short Line right of way being situated on lands extraordinarily high and dry above the land to be drained, and in no way contributing to the bogged condition, can receive no possible direct benefit from the contemplated drainage. To render it subject to assessment it must be brought within C. S., sec. 4504, which directing the commissioners provides:
"And if any particular part of the work so proposed to be done shall be assessed upon any particular tracts or lots of land or upon any municipality or corporation they shall so specify; 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 *811 part of such proposed work, they shall so report and assess the amount of such benefits."
Construing this section, this court held in In re DrainageDist. No. 1,
"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."
Again commenting on this section, this court said in Burt v.Farmers' Co-op. Irr. Co., supra:
"We do not think that portion of subdivision 5 of section 9 of the drainage district act of 1913 relating to assessments upon municipalities or corporations applies to such a situation as we have here. The public and special benefits referred to there which must be assessed to municipal or other corporations, we understand has reference to such public benefits as draining of swamps adjacent to a city or village, or schoolhouse, or the drainage of public roads of a county, where the public or a portion thereof is especially benefited, as distinguished from a benefit to a tract of land. These assessments are not to be made as benefits to any tract of land, but are to be made upon the theory of public benefits, specially applicable to a municipality or corporation, for which it is proper that the municipality or corporation should be assessed, such assessment to be paid out of the general funds of such municipality or corporation."
In that case, the bogged condition was caused in great part by seepage from the defendant's canals; and the assessments were ordered levied against the right of way, the land itself, the court ignoring the view that the company received any benefit from the general drainage. The same principle should apply here where it is not shown that the public will be benefited generally. That the railroad company will receive an "especial" benefit imposes too great a strain upon the imagination. Considering the nature of the holdings *812 within the tillable area, any increase in tonnage commensurate with assessments levied against the company is purely speculative, and the imposition of such assessments would amount to a discrimination or virtual confiscation.
The last specification points out no particular upon which alleged error is based and under repeated rulings of this court will not be considered.
Judgment affirmed. Costs to respondent.
Wm. E. Lee, C.J., and Budge and Taylor, JJ., concur.
Petition for rehearing denied.
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