Knowles v. New Sweden Irrigation District

101 P. 81, 16 Idaho 217, 1908 Ida. LEXIS 140

• Court: Idaho Supreme Court
• Decided: June 8, 1908
• Status: Published

Opinions

AILSHIE, C. J.

This appeal involves the power and authority of an irrigation district organized under the laws of this state to levy assessments for the purposes of defraying the principal and interest on bonds issued for the purchase of an irrigation system against the lands of one who owned his own water right and privileges at the time of the organization of the district and the levying of the assessment. The ease arises out of the following state of facts:

In the years 1891 and 1892, the Great Western Canal Construction Company built and constructed a canal system called the Great Western Canal, which system covered and included the lands of the appellant herein. In the year 1892, Addison V. Scott, the patentee from the United States of the lands now owned by appellant, purchased from the Great Western Canal Construction Company a water right of 250 inches of water per second of time, for use in the irrigation of his lands. For this right Scott paid the sum of $1,800 and procured a deed for the same, which recites the terms and considerations for the purchase and the conditions under which the water shall be used and applied. Among other things it is stipulated and agreed that the canal company should forever keep in repair and maintain its canal and ditches, and should deliver the quantity of water thereby sold and conveyed to the lands of the purchaser, which lands are therein specifically described. The company, on the other hand, reserved an easement and right of way over and across the purchaser’s lands for the purpose of constructing and maintaining its ditches and canals. The deed also fixes a definite and certain sum to be paid by the land owner annually as water rental. This provision of the deed is as follows:

“Said second party also hereby further covenants and agrees to pay to said party of the first part, its successors or assigns, in addition to the consideration (hereinafter) agreed to be paid, an annual rental for the use of water from said canal on said land for irrigation as aforesaid, one dollar per acre for all crops and trees for the number of acres of said land actually irrigated in that year. Said rental to be due and payable on or before the first day of November in each year, and if not paid when due, to draw interest at the rate of one per cent per month.”

This deed was placed of record and Scott and his successors in interest received water from the canal from year to year under the terms of this deed and contract. On January 15, 1900, the respondent, New Sweden Irrigation District, was organized under the provisions of the irrigation district act of 1899 (Sess. Laws 1899, p. 408), and embraced the Scott lands. On March 7, 1900, the New Sweden Irrigation District purchased the Great Western canal system, together with all of its water rights and appurtenances, for the sum of $65,000, which sum was paid in six per cent interest bearing bonds of the district. On December 12, 1901, the appellant herein, by mesne conveyances, became the owner of the premises and water rights and privileges formerly owned by Scott. Immediately after the organization of the district, the irrigation district, through its board of directors, began levying annual assessments on the lands included within the district, including the lands of the appellant herein, for the purposes of paying the interest and reducing the principal on the bonds and for improvements on the system and maintenance thereof. The first two assessments were levied prior to the purchase of this land by appellant, and his grantor refused to pay the same, and upon the sale being made, the appellant retained the amount of these two assessments from the purchase price. The appellant refused to pay these assessments and also refused to pay the subsequent assessments made against the land. Finally the officers of the district threatened to sell the lands for the collection of the assessments and were taking steps to that end, whereupon the appellant paid all the assessments then due under protest. This action was commenced for the purpose of recovering the assessments previously made under protest and restraining the district from levying or attempting to collect any further assessments against appellant’s lands, and to quiet his title in and to the water right purchased by his predecessor in interest from the Great Western Canal Construction Company.

The appellant contends that to allow the irrigation district to assess his property along with the property of other water consumers in the district for the purchase and maintenance of this irrigation system, without in the first place purchasing or condemning his water right, would amount to taking his property without just compensation and without due process of law, and cannot be justified under any theory or pretense of taxation or special assessments. The respondent, the irrigation district, contends, on the other hand, that it is pursuing the statutory method, and that it has a right to levy an assessment against the property of appellant together with all other real estate within the district, and that such a special levy or assessment does not fall within the constitutional inhibitions invoked by appellant.

It seems to us that this question may be simplified by briefly stating some fundamental principles that must necessarily arise in the consideration of this matter and upon which its correct determination must necessarily rest. In the first place, appellant’s predecessor in interest, Scott, had a clear and undisputed right to contract with the Great Western Canal Construction Company for the purchase of a water right sufficient to irrigate his tract of land. This he did, and for that right he paid $1,800. Under it he and his successors in interest were entitled to the perpetual use of water sufficient to irrigate his tract of land, not exceeding 250 inches per second, upon paying the fixed and stipulated price of $1 per acre as rental therefor. Under the laws of this state a water right is real estate. (Sec. 2825, Rev. Stat.; Ada Co. etc. Co. v. Farmers’ etc. Co., 5 Ida. 799, 51 Pac. 990, 40 L. R. A. 485; McGinnis v. Stanfield, 6 Ida. 372, 55 Pac. 1020; Hall v. Blackman, 8 Ida. 272, 68 Pac. 19.) The conveyance of this property, having been made a matter of record, became notice to subsequent purchasers from the Great Western Canal Construction Company. The respondent, New Sweden Irrigation District, had a right to organize itself into a quasi-municipal corporation for the purpose of purchasing, acquiring or constructing canals, ditches, water rights and a canal system. This it has done. It had a right to purchase the Great Western Canal system, and the Great Western Canal Construction Company had a right to sell this property. The irrigation district having the right and capacity to purchase, and the canal company having the property and the right to dispose of the same, the latter could lawfully sell to the irrigation district, which it has done. The canal company could not sell any greater title than it possessed, and when the irrigation district purchased, it could neither purchase nor acquire any greater title or interest than its grantor owned and possessed. When it purchased this canal system, it purchased it subject to and burdened with the rights and equities of the appellant’s grantor. We have not been cited to any case directly in point here, but by analogy of reasoning the following eases furnish some light on the subject:

Hewitt v. San Jacinto Irr. Hist., 124 Cal. 192, 56 Pac. 893, was decided under the Wright irrigation law of California, from which our irrigation district law was copied. In that case the court was considering the right of an irrigation district to acquire the water and canal system from which other lands were already being irrigated, and it was there held that an irrigation district under its general power to acquire and hold such waters and water rights, and other property as should be necessary to supply water to irrigate the lands within the district, had power to purchase and hold water already in part used on the lands outside the district, and to take such rights subject to the accrued use and to continue to furnish the water to such outside lands as had been previously receiving water from such system.

In City of South Pasadena v. Pasadena Land & Water Co., 152 Cal. 579, 93 Pac. 490, a similar question arose. The city purchased a canal system from the land and water company. The latter company had been furnishing certain citizens and land owners with water, and the question arose as to the liability of the land and water company’s grantee, the city, to fulfill the land company’s obligation to supply its consumers with water in the future. The court, among other things, said:

“The contention that no remedy exists to compel performance by the successor in interest is without force. In case of the establishment of a water system of this character, all the persons to whose use the water is appropriated or dedicated are vested with a right to have the supply continued by whomsoever may be in control thereof.....If the water is supplied for use upon land for its benefit, as for irrigation, the right to receive and use it becomes in the nature of an appurtenance to the land. If it is supplied for personal use to all persons within a certain territory or to all of a certain class within the territory, the right to its use is personal to the inhabitants of the territory, or to the members of the class, as the ease may be, so long as they remain such. In either ease the right may be enforced against the person in control of the supply and the works by which it is distributed, regardless of the title, by means of an action in mandamus to compel the continuance of the distribution, in the usual and proper manner, to those entitled. ’ ’

In Beck v. Pasadena Lake Vineyard Land & Water Co. (Cal.), 59 Pac. 387, Beck was endeavoring to establish his right and to quiet his title to 1/1250 part of all the water rights belonging to the water company under a deed in many respects similar to the one involved in this ease. The court there said:

“Where a land owner is entitled to an undisputed right and easement in and to a certain proportion of water, which an association was entitled to take from a stream to supply its irrigating plant connected with his land, on payment of his proportionate share of the expenses of maintaining the plant, a corporation succeeding to the rights of the association and the rights of other individual owners takes its property subject to his easement, and cannot deprive him thereof, though it improves and extends the system, and changes open ditches to pipe lines.”

Now, it is clear to us that for the purchase of this system respondent could not legally and lawfully assess appellant’s property until such time as it had either purchased or acquired his water right and privileges and reduced him to a common level, and placed him on a common footing with other land owners and water consumers in the district. To assess appellant for the purchase of a water right and canal system upon the theory that his lands were to be benefited thereby on account of receiving water from such system is wholly unjustifiable, where the appellant was already the owner of sufficient interest, title and claim in the water right and canal system for his own purposes, and where the purchase was not to be received by him either in whole or part, but was to be received wholly by a third party. If, on the other hand, his water right had been purchased by the irrigation district or condemned by it, then it would have been eminently proper to assess his lands proportionately according to the benefits received for the purchase or condemnation price. In this connection it must be borne in mind that there is a wide and well-defined distinction between the rights and appurtenances appellant had acquired under his grantor’s contract with the Great Western Canal Construction Company and the rights that he acquired under sec. 4 of art. 15 of the constitution, which constitutional provision works a perpetual dedication of the waters to the lands on which they have been once applied upon payment of the annual rental charges therefor. The latter right would remain as a matter of law, even though the district had condemned appellant’s property rights acquired under his grantor’s contract with the Great Western Canal Construction Company. The only additional right and privilege that this contract gave the purchaser over any other water user is that of receiving his water annually at the fixed and stipulated rental of one dollar per acre. On the contrary, a water consumer who had not purchased such a contract would be liable to pay such annual water rates as might be established from time to time in conformity with the statute. But under this contract neither the canal company nor its successors in interest could ever raise the rate as against appellant.

In this connection, it is contended by counsel for respondent that there is nothing in the record to show but what all the land owners within this irrigation district had purchased water rights, and are and were on an equal footing and in like condition with the appellant. The correct determination of this proposition is rather a question of law than of fact. There is no allegation in the plaintiff’s complaint as to whether the plaintiff stands alone in owning the water right in the district or whether all the other property owners own a like water right. Neither is there anything contained in the findings upon that subject. The defendant, however, pleaded certain facts as new matter constituting a defense to the plaintiff’s cause of action, among which the following allegation is contained:

“That at the time of the purchase of the said canal system as aforesaid, the same was out of repair and required much restoration work and extensions to enable it to irrigate all the lands requiring irrigation in said district, that at the time of such purchase about seventy-five per cent of the irrigable lands in said district were wild, unbroken, uncultivated, that immediately after the said purchase, the residents and land owners in said district began to break up and cultivate the same, and that such work has gone on from year to year until about two-thirds of the land in said district has been brought under cultivation, and that all of said cultivated land requires irrigation, and that this defendant has from time to time done such necessary restoration work and made such extensions of said canal system that it has in fact furnished water sufficient to irrigate all cultivated land in said district.”

It will therefore be seen that the defendant pleaded as a fact that seventy-five per cent of the land in the district' was raw, unbroken and uncultivated land. It would consequently follow that no water rights had previously belonged to such lands.

Appellant contends that this is an admitted fact in the case and that it became unnecessary for him to prove such fact. Respondent, on the other hand, contends that under sec. 4217, Rev. Stat., such allegation was deemed denied, and that in order for the appellant to have availed himself of this admission as a fact in the case upon which to rest for any relief, he must have introduced this pleading in evidence and have proven it in that manner as an admitted fact in the case. We cannot give our assent to this as a legal proposition. Under sec. 4217, Rev. Stat., the plaintiff is deemed to have denied any and all allegations of new matter contained in the answer, but the fact that such matter is deemed denied for plaintiff’s purposes does not enable the party who has pleaded such facts to himself deny or dispute them. They stand as admissions against him throughout the case. If, on the other hand, the party pleading such facts should seek to recover upon them, or should rely upon them, he must establish them by competent proof. The pleadings in a case are before the court, and constitute a part of the proceedings without being introduced in evidence. Admissions made in a pleading are denominated solemn admissions and are not required to be supported by evidence on the part of the adverse party. Such admissions are taken as true against the party making them, without further proof or controversy. (East Tennessee V. & G. R. Co. v. Kane, 92 , 18 S. E. 18, 22 L. R. A. 315; Bloomingdale v. Du Rell, 1 Ida. 33; 1 Ency. of Ev. 422; Colter v. Calloway, 68 Ind. 219; 1 Greenleaf on Evidence, secs. 27, 205.) It is different from a ease where the admissions are contained in pleadings in another action or in other papers, or in pleadings that have been amended or supplemented by new pleadings.

We conclude that it stands as an admitted fact in this case upon the face of the record that at least seventy-five per cent of the lands in this district are and were wild, unbroken and uncultivated lands, and it therefore follows that the plaintiff and appellant herein was not upon an equal footing with the other land owners in the district. Those owning the wild and unbroken lands in the district could control the organization of the district and election of officers, and would be in a position to absolutely dictate as to those matters, and if the position taken by respondent is correct, those who have never expended a dollar for the improvement of their lands or the purchase of water rights could, by their votes, deprive the land owners, who had previously purchased water rights, of all the value and benefit thereof, and substantially and in effect take their water rights without any compensation or consideration, and without due or any process of law, and by such means abrogate contracts entered into, and annihilate property rights acquired for valuable considerations. There would be gross .injustice in such a proposition, and it is clearly not contemplated by the statute and cannot be supported by authority.

Now, the taking in this ease consists in rendering appellant’s water right absolutely valueless and worthless to him, and should be distinguished from the taking that would arise from the levy of the assessment upon appellant’s land. It has been generally held that the mere levy and collection of a special assessment is not a taking of the lands assessed within the constitutional inhibition; but in this case the result would be not so much a taking of the land itself, but it would be a rendering utterly valueless the appellant’s previously acquired water right and privilege (which is real property) without any compensation whatever, and in that sense the taking is complete and in violation of appellant’s constitutional rights. (Const., secs. 13, 14, art. 1.)

Any destruction, interruption or deprivation of the common, usual and ordinary use of property is by the weight of authority a taking of one’s property in violation of the constitutional guaranty. (15 Cyc. 652; City of Janesville v. Carpenter, 77 Wis. 288, 20 Am. St. 123, 46 N. W. 128, 8 L. R. A. 808; United States v. Lynah, 188 U. S. 445, 23 Sup. Ct. 349, 47 L. ed. 539; Forster v. Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. 543; Memphis etc. R. Co. v. Birmingham S. & T. R. R. Co., 96 Ala. 571, 11 So. 642, 18 L. R. A. 166.)

Now, as to the contention of appellant that he cannot be assessed in any sum, either for the purchase of the system or for water rentals or maintenance charges until the irrigation. district either purchases or condemns his water rights under his contract, we think his position is not well taken. It can make no difference to him as to who is the owner of the canal system so long as he receives the amount of water to which he is entitled at the annual water rental he has agreed to pay; namely, one dollar per acre for the amount of land actually irrigated. The fact that the irrigation district has purchased the system is no ground of defense for appellant against the payment of water rentals to the extent of the contract price. As to whether or. not the district can in any manner be required to purchase or condemn all such rights before proceeding to levy and collect assessments, we express no opinion, as appellant is not in a position to raise that question, and it is therefore not properly before us.

Appellant seeks to recover the assessments paid under protest for the years 1900 and 1901. We think the record discloses a very cogent and persuasive reason why the appellant cannot recover those assessments. They were levied against the land before it was purchased by appellant, and when appellant made his purchase he reserved the amount of these two assessments from the purchase price. It was therefore not his money that he paid to the irrigation district but it was rather the money belonging to his grantor, and his grantor was evidently willing to pay these assessments or else he would not have allowed his grantee, appellant herein, to retain those sums from the purchase price for this purpose. (Anderson v. Oregon Mtg. Co., 8 Ida. 418, 69 Pac. 130.)

For the reasons hereinbefore given the appellant cannot recover back payments made for annual rental or maintenance up to the amount of one dollar per acre for the lands actually irrigated each year since his purchase. On the other hand, he is entitled to an injunction restraining and prohibiting the district from levying any assessment against his property for the payment of the purchase price and interest on bonds issued for the purchase of this canal system.

It has been argued by respondent that since the law creates and establishes a board for the purpose of estimating, determining and levying these assessments against the various tracts of land in the district in proportion to the benefits received, that such board had jurisdiction and was the proper tribunal to determine the same, and that its action and exercise of discretion thereon is final, and cannot be reviewed in a ease for injunction restraining a collection of the same. That proposition would, perhaps, be correct in a case where the board or body had jurisdiction to levy any assessment whatever. In other words, if the question was only one as to the amount of the assessment being unreasonable and disproportionate to the benefits received, then, respondent’s contention might, and perhaps would, be correct (2 Cooley on Taxation, 3d ed., 1182, 1258; Roby v. Shunganunga Irr. Dist., 77 Kan. 754, 95 Pac. 399; Paulson v. City of Portland, 16 Or. 450, 19 Pac. 450, 1 L. R. A. 673); but in this ease, under the facts disclosed, the irrigation district never took such steps as to acquire jurisdiction for its board of directors to make any levy against this particular tract of land. (Andrews v. Lillian Irr. Co., 66 Neb. 458, 97 N. W. 336, 92 N. W. 612.) No benefits whatever could accrue to the appellant out of the purchase by the irrigation district of this water system. Before it could acquire jurisdiction of his lands to determine benefits to be derived and proportionate assessments to be levied, it must place itself in such a position that it can confer like or similar benefits upon him and his lands as upon the other land owners within its territorial jurisdiction. It must at least be taking steps to enable it to confer some benefits on his lands. Here it is not a question of an excessive levy being collaterally attacked, but of a void levy as against these lands. It differs from sewer and drainage assessments where the general health and sanitary conditions of the whole district is to be improved and thereby benefited, or the lands are all to be improved in some measure by the drainage. Here appellant is already the owner of sufficient water rights and privileges to irrigate his lands, and the irrigation of other lands in the district cannot aid him or render any benefit to his lands, and it cannot benefit him to furnish him .the water he already owns and is entitled to use. These views seem to be borne out by the provisions of the statute itself. Sec. 12 of the act of the legislature of 1899 (Sess. Laws 1899, p. 415) provides, among other things, as follows:

“The board and its agents and employees shall have the right to enter upon any land to make surveys, and may locate the necessary irrigation works and the line of any canal or canals, and the necessary branches for the same, on any lands which may be deemed best for such location. Said board shall also have the right to acquire, either by purchase, condemnation or other legal means, all lands and water rights, and other property necessary for the construction, use and supply, maintenance, repair and improvements of said canal or canals and works, including canals and works constructed and being constructed by private owners, lands for reservoirs for the storage of needful waters, and all necessary appurtenances. In case of purchase, the bonds of the district hereinafter provided for may be used to their par value in payment.”

See. 13 of the act provides that legal title to all property acquired shall vest in the irrigation district, subject to the uses and purposes for which it was acquired. See. 43 of the act provides as follows:

“None of the provisions of this act shall be construed as repealing or in anywise modifying the provisions of any other act relating to the subject' of irrigation or water distribution, except as provided in see. 59 of this act. Nothing herein contained shall be deemed to authorize any person or persons to divert the waters of any river, creek, stream, canal or ditch from its channel, to the detriment of any person or persons having any interest in such river, creek, stream, canal or ditch, or the water therein, unless previous compensation. be ascertained and paid therefor, under the laws of the state authorizing the taking of private property for public uses.”

These provisions of the statute were evidently enacted for the very purpose of enabling the district to acquire all the water rights and privileges held and owned by individuals, companies or corporations within the territorial jurisdiction of the district. It was contemplated by the legislature that districts would be formed wherein individuals or small companies might own their own water rights and ditches for their private use, and it must have been intended that if the district desired to acquire such rights and assess the property on which such waters- were being applied, it might do so by purchasing or condemning the water rights and bringing their owners into the community of interest with the other land owners in the district, and thereby place them on an equal footing with all others against whom assessments might be levied and collected.

It follows from what has been said that the judgment and order appealed from must be reversed, and it is so ordered, and -the cause is remanded with direction to the trial court to take such other and further proceedings as may appear necessary in conformity with the views herein expressed. Costs awarded in favor of appellant.

Sullivan and Stewart, JJ., concur. (April 10, 1909.) [101 Pac. 87.] ON REHEARING. Irrigation Districts — Confirmation of Organization — Board of Directors of — Power to Levy Assessments — Legality of — Notice of Election — Of Voting Bonds — Of Confirmatory Proceeding —Proceeding in Rem — Abrogation of Contract Rights — Jurisdiction — Notice Sufficient — Decree of Confirmation — Collateral Attack — Benefits — Assessments According to — Owner of Water Right — Res Adjudicata — Constructive Service —Sufficiency of — Jurisdiction of Subject Matter and Parties — Due Process of Law. 1. An irrigation district organized under tlie provisions of the irrigation district act of 1899 (Sess. Laws 1899, p. 408), and acts amendatory thereof, has power and authority to levy and collect assessments against the lands within the district according to the benefits received. 2. Said aet provides for notice to be given by publication in a newspaper of the presentation of the petition for the organization of such irrigation district to the board of county commissioners, and of the time of hearing such petition by such board and for an election to be held for voting on the proposition o the organization of such district, a notice for bond election, ana notice of the application to the district court for a judgment ol confirmation confirming all proceedings in relation thereto. 3. The organization of the district and all proceedings in connection therewith, the voting of bonds and other matters, including the decree of confirmation by the district court, are proceedings in rem. 4. Constructive service of the notices required by said aet is sufficient to give each and every person interested in the organization of such district his day in court, and the court jurisdiction of the person and subject matter. 5. If anyone is dissatisfied with the judgment of confirmation, he is given, by the terms of said act, the right to appeal to the supreme court. Under the provisions of said aet, all lands within said district are subject to assessment according to the benefits received for the payment of the bonded indebtedness of such district. 6. The board of directors of the district has the authority to determine whether or not the several tracts of land included within said district will be benefited by the organization of the district and the purchase or construction of an irrigation system, and anyone dissatisfied therewith may have the action of the board reviewed, as provided by said act. 7. Where a party owns his own water right and would not receive any benefit from the organization of the district, he may, upon proper showing, have .his land excluded from the district and from assessment. Held, under the facts of this case, that an opportunity was given the plaintiff to show that his land would receive no benefits, but that he failed to appear and make such showing, and is bound by the action of the board and the decree of confirmation in that regard. 8. Held, that this action is a collateral attack upon said judgment of confirmation, and so far as this action is concerned, is res adjudicata. 9. In all collateral proceedings, the benefits assessed against land are conclusively presumed to be received, and the assessment is not open to revisal or review. 10. Under the provisions of said act, it was not necessary that personal service be made upon the land owners of the district in order to give the court jurisdiction and power to render a judgment of confirmation valid and binding as against them upon all questions involved in the ease. 11. This action does not involve the taking of property without due process of law, nor the violation of the obligations of a contract. (Syllabus by the court.)

APPEAL from tbe District Court of the Fifth Judicial District for Bannock County. Hon. Alfred Budge, Judge.

Action against an irrigation district to recover certain assessments alleged to have been paid under protest. Judgment for the defendant. On rehearing,

affirmed. W. H. Wilkins, for Appellant.

A party has the right to recover back illegal assessments paid under coercion. (25 Am. & Eng. Ency. of Law, 2d ed., 1240; Bank of Santa Rosa v. Ghalfant, 52 Cal. 170; Bank of Mendocino v. Ghalfant, 51 Cal. 369; Armstrong v. Ogden City, 12 Utah, 476, 43 Pac. 121; Gill v. City of Oakland, 124 Cal. 335, 57 Pae. 152.)

O. E. McCuteheon and Wyman & Wyman, for Respondent.

Plaintiff and his grantor waited until the district was organized and in full operation. His remedy in case of any injury was damages and not injunction. {Penn. Ins. Co. v. Heiss, 141 111. 35, 33 Am. St. 273, 31 N. E. 138; Somer v. Metropolitan E. B. B., 129 N. Y. 576, 29 N. E. 802, 14 L. R. A. 344; Kaufmam v. Tacoma etc. B. B. Co., 11 Wash. 632, 40 Pae. 137; Silsby v. Tacoma B. B. Co., 6 Wash. 295, 32 Pac. 1067; State v. Superior Court, 26 Wash. 278, 66 Pae. 385; Wichita & W. B. Co. v. Fechheimer, 36 Kan. 45, 12 Pae. 362; McAulay v. Western Vermont B. B. Co., 33 Yt. 311, 78 Am. Dec. 627; Griffin v. Shreveport B. B. Co., 41 La. Ann. 808, 6 So. 624; Ohio Biver B. Co., v. Ward, 35 W. Ya. 481, 14 S. E. 142; Churchill v. Beethe, 48 Neb. 87, 66 N. W. 992, 35 L. R. A. 442.)

An assessment of benefits is ipso facto an equalization. It cannot be otherwise. No one can complain of being assessed the amount he is benefited. No one can complain of being assessed like all others in the same class, and certainly the plaintiff is in the same class as all other owners of water rights.

It would have been impracticable to condemn all these deeded water rights. {City of South Pasadena v. Land & Water Co., 152 Cal. 579, 93 Pae. 490.) .

Hugh E. MeElroy, appearing amicus curiae on rehearing.

The authorities clearly hold that the only jurisdictional defect that can be considered collaterally is lack of jurisdiction of the subject matter. In other words, where the assessment is absolutely void and the court has jurisdiction to review the assessment and confirms it, the assessment is good and cannot be attacked collaterally. {City of Duluth v. Dibblee, 62 Minn. 18, 63 N. W. 1117; Hause v. City of St. Paul, 94 Minn. 117, 102 N. W. 221; Hamilton’s Law of Special Assessments, see. 633.)

“The city council has jurisdiction to determine the question of benefits, as well as the regularity and validity of the assessment; and, where the proceedings are regular, and due notice given, the confirmation of the assessment by the council is final.” (Wright Seminary v. Tacoma, 23 Wash. 109, 62 Pac. 444; New Whatcom v. Bellingham Bay Imp. Co., 18 Wash. 181, 51 Pac. 360.)

Where the property is situated within the territorial boundaries and the council or board are authorized to assess benefits, and the formalities prescribed by law have been complied with and a benefit assessed, the assessment cannot be collaterally attacked. (Stoddard v. Johnson, 75 Ind. 20; Ricketts v. Spraker, 77 Ind. 371; Be Puy v. City of Wabash, 133 Ind. 336, 32 N. E. 1016; Boyce v. Tuhey, 163 Ind. 202, 70 N. E. 531; Hammond v. People, 169 111. 552, 48 N. E. 573.)