MR. JUSTICE CASTLES:
This is an action for an injunction brought by the six named plaintiffs against the City of Kalispell, its mayor, aldermen, and clerk, in connection with a special improvement district created for the purpose of participating with the Montana [286]*286Highway Department and United States Bureau of Public Roads in the improving, widening and reconstruction of sections of U. S. Highway No. 2- and U. S. Highway No. 93, within the-boundaries of the City of Kalispell and therefore a part of its street system. The plaintiffs allege that they brought the action on behalf of themselves “and for the benefit of all of the other owners of property within said special improvement district:”
At the time of the filing of the complaint, the plaintiffs also filed three affidavits in support of a request for a temporary restraining order and. an order, to show cause why an injunction pendente lite should not issue. The court did not issue a temporary restraining order but did issue an order to show cause aá requested. Following the' hearing on the order to show cause, the court issued an order denying the requested injunction pendente lite. .
A' general demurrer to the complaint was overruled. Subsequently an answer was filed by the defendants to which a demurrer was interposed. This demurrer was overruled.
In the complaint, the plaintiffs attack the validity of the creation of Special Improvement District No. 294 of the City of Kalsipell on several grounds. These grounds may be roughly divided into three categories.
The first ground of attack is that the City failed to mail copies of the notice of the passage of the resolution of intention to create the special improvement district to two couples, Frank N. Shaw, who is one of the named plaintiffs, and his wife, Lillian E. Shaw, and John H. Dewell and his wife, Thelma A. Dewell. It is alleged that they were persons having real property within the proposed district. The Dewells and Lillian E. Shaw were not named as parties plaintiff.
The second ground of attack was that the defendants had acted capriciously, arbitrarily, wilfully, and in fraud of the plaintiffs in á number of particulars in creating the district. It was alleged that the defendants had used improper standards and reason in making their official determination of the [287]*287area that would be benefited by the improvement; that much of the land in the proposed district was zoned for residential use; and that a uniform yardstick of distance was not used by the city council in fixing the boundaries of the district.
The third ground of attack was that a portion of the area included in the district had been annexed to the city some two years ago, but that the annexation proceedings had been improperly taken at that time. It was not alleged that any of the plaintiffs had property in the annexed area or that any owners of property within the annexed area were complaining or had ever raised any question about the legality of such annexation proceedings.
In the answer filed by the defendants, it was admitted that no notice had been mailed to either the Shaws or the Dewells, but it was alleged that if they were owners by reason of purchasing their respective properties under contracts for deed or otherwise, such contracts had never been recorded nor did the defendants have actual knowledge of such claim of ownership. It was also alleged that notices had been properly mailed to the record owners of the property in each instance and that the notices had been published as required by law.
It was further alleged in the answer that each of the named plaintiffs had participated in the proceedings by filing protests, including the plaintiff, Frank N. Shaw, and that his wife, Lillian E. Shaw, had likewise filed a protest. It was also alleged that the total protests received were from owners of only 23.03 percent of the land in the proposed district and that the tract of land apparently purchased by the Dewells under an unrecorded contract was so small that the percentage of area protested would not have materially increased had they filed a protest.
Two affirmative defenses were set up in the answer.
The first was that the Shaws and Dewells did not avail themselves of the statutory right to record their contracts so as to give notice of their claim of ownership in the respective parcels of land; that they were therefore estopped to deny the [288]*288validity of the actions of the • defendants who caused a diligent search to be made' to determine the names of persons having property within the district'; and that they had no actual knowledge of the- interest claimed by the Shaws and the Dewells.
The second affirmative defense was that the plaintiffs are not qualified to maintain this action in a representative capacity and that therefore the action has not been brought in the name of the real parties in interest; that a very great number of persons whom the plaintiffs purport to represent do not wish this litigation; that many favor the project and have worked long and hard for its accomplishment; that owners of only 23.03 percent of the area in the proposed district filed written protests; that all persons objecting to the proceedings, including the plaintiffs, had an ample opportunity to be heard under the provisions of section 11-2206, K..C.M. 1947, and are therefore now estopped to deny the validity of the actions of the defendants.
At the outset of the trial, an objection was made by the defendants to the introduction of evidence by the plaintiffs on the ground that the complaint did'not state a cause of action. After argument, the objection was sustained. Notwithstanding this ruling, the court permitted the plaintiffs to make a lengthy “offer of proof” as to what evidence they would have presented had they been permitted to proceed. The defendants objected to this procedure and to the “offer of proof.” The court denied the offer of proof.
The court then announced that it would take the ease under advisement on the basis of the facts pleaded on the question of the necessity, under section 11-2204, of the city cleric to mail copies of the notice of the passage of a resolution of intention to' create a special improvement district to persons purchasing real property within the' proposed district under an unrecorded contract for deed, when the city officials had no actual knowledge of such ownership interest, and the additional question [289]*289of the right of the plaintiffs to attack in this proceeding, the validity of such proceedings.
The defendants moved for a'judgment of dismissal of the action on the merits and this motion was also taken under advisement, time being granted for the filing of briefs. Subsequently the lower court made and filed findings of fact and conclusions of law in which it simply found that the Shaws and the Dewells were persons having property and residing within, the proposed district; that no notice had been given them under section 11-2204; and that the Shaws had waived the defect of failure of required notice by filing protests in the proceedings.
From these findings the court concluded that the plaintiffs were entitled to judgment as prayed for. A decree was entered stating that the proceedings of the defendants, creating the special improvement district, were invalid and that the defendants were enjoined and restrained from further acts and proceedings in connection therewith. Exceptions to the findings were filed by both parties.
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MR. JUSTICE CASTLES:
This is an action for an injunction brought by the six named plaintiffs against the City of Kalispell, its mayor, aldermen, and clerk, in connection with a special improvement district created for the purpose of participating with the Montana [286]*286Highway Department and United States Bureau of Public Roads in the improving, widening and reconstruction of sections of U. S. Highway No. 2- and U. S. Highway No. 93, within the-boundaries of the City of Kalispell and therefore a part of its street system. The plaintiffs allege that they brought the action on behalf of themselves “and for the benefit of all of the other owners of property within said special improvement district:”
At the time of the filing of the complaint, the plaintiffs also filed three affidavits in support of a request for a temporary restraining order and. an order, to show cause why an injunction pendente lite should not issue. The court did not issue a temporary restraining order but did issue an order to show cause aá requested. Following the' hearing on the order to show cause, the court issued an order denying the requested injunction pendente lite. .
A' general demurrer to the complaint was overruled. Subsequently an answer was filed by the defendants to which a demurrer was interposed. This demurrer was overruled.
In the complaint, the plaintiffs attack the validity of the creation of Special Improvement District No. 294 of the City of Kalsipell on several grounds. These grounds may be roughly divided into three categories.
The first ground of attack is that the City failed to mail copies of the notice of the passage of the resolution of intention to create the special improvement district to two couples, Frank N. Shaw, who is one of the named plaintiffs, and his wife, Lillian E. Shaw, and John H. Dewell and his wife, Thelma A. Dewell. It is alleged that they were persons having real property within the proposed district. The Dewells and Lillian E. Shaw were not named as parties plaintiff.
The second ground of attack was that the defendants had acted capriciously, arbitrarily, wilfully, and in fraud of the plaintiffs in á number of particulars in creating the district. It was alleged that the defendants had used improper standards and reason in making their official determination of the [287]*287area that would be benefited by the improvement; that much of the land in the proposed district was zoned for residential use; and that a uniform yardstick of distance was not used by the city council in fixing the boundaries of the district.
The third ground of attack was that a portion of the area included in the district had been annexed to the city some two years ago, but that the annexation proceedings had been improperly taken at that time. It was not alleged that any of the plaintiffs had property in the annexed area or that any owners of property within the annexed area were complaining or had ever raised any question about the legality of such annexation proceedings.
In the answer filed by the defendants, it was admitted that no notice had been mailed to either the Shaws or the Dewells, but it was alleged that if they were owners by reason of purchasing their respective properties under contracts for deed or otherwise, such contracts had never been recorded nor did the defendants have actual knowledge of such claim of ownership. It was also alleged that notices had been properly mailed to the record owners of the property in each instance and that the notices had been published as required by law.
It was further alleged in the answer that each of the named plaintiffs had participated in the proceedings by filing protests, including the plaintiff, Frank N. Shaw, and that his wife, Lillian E. Shaw, had likewise filed a protest. It was also alleged that the total protests received were from owners of only 23.03 percent of the land in the proposed district and that the tract of land apparently purchased by the Dewells under an unrecorded contract was so small that the percentage of area protested would not have materially increased had they filed a protest.
Two affirmative defenses were set up in the answer.
The first was that the Shaws and Dewells did not avail themselves of the statutory right to record their contracts so as to give notice of their claim of ownership in the respective parcels of land; that they were therefore estopped to deny the [288]*288validity of the actions of the • defendants who caused a diligent search to be made' to determine the names of persons having property within the district'; and that they had no actual knowledge of the- interest claimed by the Shaws and the Dewells.
The second affirmative defense was that the plaintiffs are not qualified to maintain this action in a representative capacity and that therefore the action has not been brought in the name of the real parties in interest; that a very great number of persons whom the plaintiffs purport to represent do not wish this litigation; that many favor the project and have worked long and hard for its accomplishment; that owners of only 23.03 percent of the area in the proposed district filed written protests; that all persons objecting to the proceedings, including the plaintiffs, had an ample opportunity to be heard under the provisions of section 11-2206, K..C.M. 1947, and are therefore now estopped to deny the validity of the actions of the defendants.
At the outset of the trial, an objection was made by the defendants to the introduction of evidence by the plaintiffs on the ground that the complaint did'not state a cause of action. After argument, the objection was sustained. Notwithstanding this ruling, the court permitted the plaintiffs to make a lengthy “offer of proof” as to what evidence they would have presented had they been permitted to proceed. The defendants objected to this procedure and to the “offer of proof.” The court denied the offer of proof.
The court then announced that it would take the ease under advisement on the basis of the facts pleaded on the question of the necessity, under section 11-2204, of the city cleric to mail copies of the notice of the passage of a resolution of intention to' create a special improvement district to persons purchasing real property within the' proposed district under an unrecorded contract for deed, when the city officials had no actual knowledge of such ownership interest, and the additional question [289]*289of the right of the plaintiffs to attack in this proceeding, the validity of such proceedings.
The defendants moved for a'judgment of dismissal of the action on the merits and this motion was also taken under advisement, time being granted for the filing of briefs. Subsequently the lower court made and filed findings of fact and conclusions of law in which it simply found that the Shaws and the Dewells were persons having property and residing within, the proposed district; that no notice had been given them under section 11-2204; and that the Shaws had waived the defect of failure of required notice by filing protests in the proceedings.
From these findings the court concluded that the plaintiffs were entitled to judgment as prayed for. A decree was entered stating that the proceedings of the defendants, creating the special improvement district, were invalid and that the defendants were enjoined and restrained from further acts and proceedings in connection therewith. Exceptions to the findings were filed by both parties. This appeal is from that judgment and decree.
The recitation of the facts of this appeal heretofore set out reveal a remarkable record to say the least. After the trial court ruled that no evidence would be received on the grounds that the complaint did not state a cause of action, it nonetheless made findings of fact and granted plaintiffs the prayer of their complaint.
It should further be said that no motion for judgment on the pleadings was made by either party. Neither was any attempt made by plaintiffs to amend their pleadings which were ruled not to state a cause of action. Yet, the same plaintiffs have judgment. Under this state of the record this court is asked to rule on an appeal.
We must assume that regardless, of the lack of a motion for judgment on the pleadings, that such a judgment was made by the court of its own motion. We must also assume that the court subsequently reversed itself on its ruling that no cause [290]*290of action was stated by the plaintiffs and ruled that a cause of action was stated. Apparently we must also assume that the defendants confessed judgment. Of course, such an assumption cannot be indulged. Obviously the judgment cannot stand. The propriety of the first two assumptions by this court may certainly be questioned, but some disposal must be made of the appeal.
As we said in Bradbury v. Nagelhus, 132 Mont. 417, 427, 319 Pac. (2d) 503, 510:
“Appeals in equity require a disposal by this court which will ‘put an end to litigation and avoid the necessity of new trials involving expense and the contingencies incident to delay.’ State ex rel. United States Fidelity & Guaranty Co., of Baltimore, Md. v. District Court, 77 Mont. 594, 600, 251 Pac. 1061, 1062.”
The instant case is one of considerable public interest, and applying the above rule we should attempt to aid an orderly disposal of the issues, if possible. The highway and street improvements which are involved are of considerable concern, and since these same improvements have been in litigation for two or three years and have been before this court in an appeal in another action, Wood v. City of Kalispell, 131 Mont. 390, 310 Pac. (2d) 1058, we will attempt to answer the main issue to avoid further and prolonged litigation.
Although we have before us ably done briefs by counsel for both sides, which pose interesting problems, we are constrained from attempting to answer all question posed because they are not properly before us. We think that one question in two parts presents the main issue.
First, may parties, who have either received notice or waived notice by appearing to protest, take advantage of the failure of notice to other parties who have neither protested nor appear as parties to the suit. Second, is it necessary under the provisions of section 11-2204 that the city clerk mail copies of the required notice to persons who are neither record own[291]*291ers nor personally known owners of an interest in property in the district?
We answer each question in the negative.
It is clear from the pleadings, and the respondents concede, that none of the plaintiffs can question the lack of notice to themselves, because they either received notice or appeared to protest and thereby waived notice. Can they do so in a representative capacity as to others who neither protest nor 'join in a shit and who, as shown by the pleadings, could not constitute a sufficient numerical protest to affect the proceedings? We think not.
Section 11-2204 requires that “a copy of such notice shall be mailed to every person * * * having property within the proposed district at his last known address, upon the same day such notice is first published or posted.”
In Ross v. Board of Supervisors, 128 Iowa 427, 434, 104 N. W. 506, 509, 1 L.R.A., N.S., 431, the Iowa court said:
“Generally speaking * * * no one is entitled to raise the objection [of want of notice] except the party entitled to the notice. Assume, for instance, that proceedings for the establishment of a highway several miles in length, and passing through the lands of many different persons, are instituted, carried through to the final order, and the road is established and opened to travel. If, a year or two later, it be discovered that a nonresident owner of a single small tract was by some mistake omitted from the notice for which the statute provides, we may concede that as to such land and such owner the order of establishment is voidable or void; but it would be a somewhat startling proposition to hold that failure to notify this one owner is a jurisdictional defect of which every other owner along the line may take advantage, even though he himself was duly and properly notified.”
In Poundstone v. Baldwin, 145 Ind. 139, 44 N. E. 191, 193, the Indiana court said:
‘ ‘ The rule is that appellants can only bring before the court such questions as affect their right, and not such as affect the [292]*292rights of others. The fact that one or more of the landowners was not notified will not vitiate the proceedings as to those who were properly notified. [Citing eases.]”
In Hurst v. Town of Martinsburg, 80 Minn. 40, 82 N. W. 1099, 1101, the Minnesota court said that one receiving notice for the laying out of a road may not question the proceedings on the ground that another was not properly served, and then states:
“Elliott Roads [& S. 242, 244], lays down the general rule on this subject as follows:
“‘Where notice is required, it is essential to confer jurisdiction, for without some notice there is no jurisdiction, and the proceedings are [absolutely] void. It is not, however, to be understood that where there is jurisdiction of the subject-matter, and there are many persons interested as owners of different parcels of land, failure to give notice to some of the property owners will vitiate the entire proceeding. In such cases the better opinion is that the proceeding is void only as to those who have not been notified, but valid as to those who have had notice. * * * Proceedings in highway cases, therefore, are not, as a general rule, impeachable by persons who by due process of law have been brought into court, although other property owners may not have received notice.’ * * * No very good reason occurs to us why a person who has been duly served with notice, or has voluntarily appeared in the proceedings and thereby waived notice, should be permitted to urge the failure to serve his co-defendant, or to set himself up as a representative of the public generally.”
We recognized this rule in Wood v. City of Kalispell, supra, when we specifically limited the decision to the one person not receiving notice who was also a party plaintiff.
Now, even if the Dewells were parties plaintiff, they are not persons “having property within the proposed district” within the meaning of R.C.M. 1947, sec. 11-2204.
Elliott on Roads and Streets, Vol. 1, sec. 363, at page 420, 421, (4th ed.) states:
[293]*293“Where the statute requires notice to owners of property, it is sufficient, as a general rule, to give notice to those whose titles appear of record. This must ordinarily be the rule in highway eases as well as in other cases, since there is no other method provided by law for ascertaining who are the owners of land, and if the owner by his own carelessness omits to give the legal notice of his title he is so much in fault as not to be entitled to be heard to aver that he was not given notice of the proceedings taken to appropriate the land.”
It should be kept in mind that we are not dealing with who might be entitled to protest under R.C.M. 1947, sec. 11-2206. We are only concerned with persons holding property who are entitled to written notice. It might further be noted that section 11-2204 provides for a published notice. This publication is to notify persons who would not otherwise be notified so that they might show themselves qualified to file written protest. In other words, due process requires a reasonable notice as to give everyone interested their opportunity to be heard. To hold the contrary would put a premium on concealment of real property ownership.
How is the city clerk to determine the names and addresses of persons “having property within the district?” What was intended by the legislature as being sufficient effort on the part of the administrative clerk of a city in determining the names and last known addresses of the owners of property within the proposed district?
The historic source of information concerning the ownership of real property, or of an interest in real property, has been the property ownership records kept in the office of the clerk and recorder of each county. For many purposes the legislature has referred to “the last completed assessment roll” of a county as the source of identity of persons entitled to act by petition, by voting, etc. The registration statutes (R.C.M. 1947, Title 16, chapter 29) were enacted so as to provide property owners with a means of notifying all others of their interest or claim of interest in real property.
[294]*294It cannot be assumed that a city clerk, or any other city official, has the means at hand to inform himself of all interests that all persons might claim in property located within ■a '.city, or within a particular special improvement district. •There is no statutory limitation on the size of a special improvement, district. Such a district may be one block in size, or -it may encompass many city blocks. Only the official county records can give reliable and complete information as to property ownership or claims of interest in property. •Surely -the legislature intended that such records should be consulted and.that notices should be mailed to owners of property at their last known addresses as shown by such records. Any other interpretation would impose a most unrealistic and impossible task upon city officials and it would be virtually impossible, if not completely so, to ever create a special improvement district in this state.
It is alleged in the answer of the- defendants, and not denied, that the city clerk made a thorough and exhaustive search .of the public records in determining the ownership of the hundreds of lots and unplatted and irregular tracts within ■the proposed district. No greater precautions could be taken to insure an accurate listing of property owners. Surely the legislature did hot intend that more than this be done.
In 48 Am. Jur., Special or Local Assessments, see. 124, page 6.73, it is said, “Generally, the term ‘owner’, as used in a statute requiring assessment bills for local improvements to state the name of the owner of the property, denotes the person to whom the public records show to be vested with title, in •the absence of knowledge to the contrary. ”
The official record is the only source that is capable of giving positive information as to property ownership. It is used every day in the preparation of abstracts and title insurance policies in connection with real estate transactions. Such records are the official records of the county and of the public as a whole and have always been recognized as such by the courts,
[295]*295Likewise, that is the only source that is capable of giving positive information as to the “last known address” of property owners in general. It is so used in quiet title actions, in notifying of tax assessments, tax delinquencies and sales, and in many other proceedings affecting property ownership and interests. Again, courts have historically recognized this source as the official source of such information.
And finally, it is the only source that is capable of giving information as to ownership and addresses as of a specific time. Here the ownership and addresses must be determined as of the day on which the “notice is first published or posted.” Only the official county records are capable of giving that information. A diligent search might be made elsewhere to determine information as to ownership and addresses on a large number of tracts but, due to the number of tracts involved, it would be impossible to “fix” that information up to the date of publication of the notice except through the use of the official records of the county.
And again, as here, some one might obtain a conveyance at the last moment, or fail to record an instrument of property ownership, and the city clerk would have no possible means of learning of such conveyance or of the “last known address” of the new owner.
The legislature obviously did not intend to require an absurdity nor an impossibility. The respondents argue that to interpret section 11-2204, as we have, is to legislate. We think such is not the case, but rather we have defined the language used so that a reasonable interpretation might be had.
We have not attempted herein to answer many of the questions posed in both briefs nor in a motion by appellants to strike the respondents’ cross-assignments of error. In the condition of the record before us, we do not feel it proper to go beyond the single issue which might possibly have been grounds for the district court’s action.
For the reason stated, and with the comments made in ref[296]*296erenee to the notice required; the judgment is reversed, and the cause dismissed.
MR. JUSTICE, ANGSTMAN and THE HONORABLE W. R. FLACHSENHAR, District Judge, sitting in place of MR. CHIEF JUSTICE HARRISON, concur.