Concurring in Conclusion. — As I read and understand the opinion of the chief justice written on the re*251hearing of this case, it only passes directly on one specific point; namely, that the question as to whether the appellant’s lands will be benefited by the proposed plan and system of irrigation is res adjudicata. The opinion seems to hold that since the appellant had an opportunity to appear before the board of commissioners and object to the inclusion of his lands within the district, and also had a right to appear before the district court and contest the action of the board of commissioners in including his lands within the district, he has had his day in court, and is now bound by the decision of the commissioners and of the district court thereon. After another examination of this case, I am inclined to agree with that conclusion. I am more particularly influenced to this conclusion by the case of Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. ed. 369, than by any other case or authority I have examined. The authorities cited in the opinion in that case, and also the cases that have cited, approved and followed that case, while none of them are directly in point on the case at bar, are so nearly parallel in principle and point of reasoning that I am persuaded that they are sufficient authority for holding, under our irrigation law, that the appellant has had his opportunity for a hearing and his day in court, and that the proceedings had in the organization of the district and confirmation by the district court should now have the force and effect of a final judgment. If that be once conceded, then, of course, this proceeding, in so far as it attempts to attack the right of the board of commissioners to include plaintiff’s lands within the irrigation district, is a collateral attack and cannot be maintained. The ease on rehearing has been presented and likewise considered on an entirely different theory from that considered on the original hearing. The original consideration in this case, as will be disclosed from the opinion filed on that hearing, revolved around the proposition that appellant already had a water right acquired by him through contract and purchase, and that the same had become a vested right which the district had, in effect, abrogated by assessing his lands for another and like water right under the district system. The opinion on rehearing seems to disclaim any such effect, and to hold that he still has all the rights and *252privileges under his original contract that he ever had, and that they are in no wise affected by the inclusion of his lands within the district and their assessment for such benefits as may be received. I gather this conclusion from various statements contained in the opinion, and especially from the following:
“And this court in the original opinion herein agreed with counsel in that contention and held that said assessments were a virtual abrogation of contract rights. But as we now view the ease, it does not involve that question, but involves the question of whether the plaintiff can in this action collaterally attack the organization of said district, said assessments and the decree confirming those acts.”
In view of the fact that the original opinion deals with the ease from an entirely different view point from that covered by the opinion on rehearing, and that the original opinion received the unanimous approval of the bench and will stand as the law of the case, except in so far as it is specifically disapproved by the latter opinion, I desire at this time to indicate specifically the grounds upon which I concur in the latter, and such portion, if any, of the original opinion as I am now-in accord with. I think the court owes it to the bench and bar of the state to be more specific in this matter. I am now of the opinion that this court was in error when it held in the original opinion that the New Sweden Irrigation District had never acquired jurisdiction to levy and collect assessments in any amount against appellant’s land. That proposition, and such portions of the opinion as revolve about and support it, are not in accord with my present view of the law of this case. In other respects I still adhere to the principles as announced in that opinion.
It was assumed at the time of the previous decision, without being in any way mooted or decided, that under the California authorities, from which state our irrigation law was copied, the determination of the board of commissioners that a specific tract of land would be benefited by the formation of the district and its consequent inclusion within the district was final and conclusive and not subject to review on appeal *253or otherwise. (Board of Directors v. Tregea, 88 Cal. 354, 26 Pac. 237; Fallbrook Irr. Dist. v. Bradley, supra.) It was considered, therefore, that the action of the district in the ease at bar amounted, in substance and effect, to the “taking” of appellant’s property. If it be once conceded, or the conclusion be arrived at, that any of appellant’s property has been taken within the meaning of the constitution and statute, then, of course, the “taking” has not been in accordance with and by due process of law as pointed out by statute to be pursued in condemnation. I gather, however, from the present opinion that the writer does not consider the action of the board final and conclusive, but rather holds that it is subject to review on appeal. I am especially led to this conclusion from the following sentence:
“The assessment is based upon the amount of benefits, and whether or not the purchase of a system of irrigation works is a benefit to any particular tract of land within the district, is a matter, the determination of which is committed to the board of directors, in the first instance, and the land owner, if he is dissatisfied, is given opportunity to further contest said assessment in the court where the assessment is sought to be confirmed, and if the judgment of that court is not satisfactory, he may appeal to the supreme court of this state. ’ ’
It occurs to me, however, that the distinction should be clearly maintained at all times between the organization of the district and the levy of annual assessments upon the lands within the district, for the payment of the bonds and other expenses. By see. 2 of the act (Sess. Laws, 1899, p. 408) the commissioners, by making an order for the organization of a district and defining its boundaries, thereby determine, as a matter of fact, that all the land so included will be “benefited by irrigation by said system,” and it is made their specific duty to exclude all lands “which will not, in the judgment of such board, be benefited by irrigation by said system.” This is the first order made in the organization of a district, and is a determination in the very inception of its organization that all the lands within its boundaries will be *254benefited in some measure by the objects and purposes of the organization. The specific assessment which is made annually is not made ordinarily until after bonds have been voted and issued, and that was the fact in this case. The annual assessment, the specific amount in which a tract of land is to be benefited by the system, is never involved in the hearing before the district court on confirmation of the proceedings in organizing the district and issuing bonds. I would not want at this time to commit myself on the proposition as to what, if any, relief a land owner has against an exorbitant, unreasonable or excessive annual assessment made against his land; nor do I express any opinion as to the finality of the order of the board of commissioners in determining that any specific tract of land included within the district will receive benefits of some character or degree by reason of the organization of the district and construction of the system.
As to the rights of the appellant in his water contract, I have no doubt, and that they cannot be summarily taken away from him or the contract abrogated, I am equally clear. I understand from the opinion on rehearing that it is admitted that if appellant had appeared before the board of commissioners and shown that he had a water right which entitled him to all the water he needed or could use on his land, that then the board would have had no right to include his lands within the district. The following sentence from the opinion indicates that view:
“An opportunity was given to the plaintiff to show that he had a contract with the predecessors in interest of the district which the district had assumed, and which it could be compelled to perform and thus show that no benefits would be received if in fact that were true. This, however, he or his grantor did not do, but made default and the assessment was made without objection. He thus had his day in court and is bound by the assessments.”
It is suggested, however, by the opinion, that although a land owner might own a water right, still he might be benefited in some measure by being included within an irrigation district, for the reason, I presume, that he might be able to secure better service or more water or something of *255the kind. I think that proposition is correct; but the statement is misleading in the present case, for the reason that the record affirmatively shows that the appellant had a sufficient water right for all of his lands and was receiving full and satisfactory service, and that he has received no other different or better service from the irrigation district. Under such circumstances it is clearly apparent that there would be no basis for including such lands within the district or levying an assessment against them.
On the other hand, we are not advised as to what kind of showing was made before the board of commissioners at the time they made the order including this land within the district. For the purposes of this case we must assume that a satisfactory showing was made before the board that appellant ’s land would be benefited. The theory and principle upon which I concur in an affirmance of the judgment of the trial court in this case is that the appellant had the right and opportunity of appearing before the board of commissioners and making a showing and resisting the inclusion of his lands within the district, and that he has never at any time made a direct attack upon the action of the board of commissioners or of the district, nor of the judgment of the district court in confirming the organization of the district and proceedings subsequent thereto. Of course it may be said that the appellant has never had any complaint to make against the organization of the district itself but rather against the inclusion of his lands within the district and their assessment for benefits.
I have no doubt but that it was the legal duty of the district in the first place to either exclude this man’s land from the district, on a showing that he had an adequate water right, or purchase or condemn his right as indicated in the original opinion. On the other hand, I am of the opinion that he has had the opportunity of having his day in court and has not availed himself of it, and that it is now too late for him to collaterally attack proceedings that should be viewed as in the nature of a final judgment. He should have entered an appearance as a party to the proceedings at the proper time, and in the proper forum.