Dissenting. — I am unable to concur in' the conclusion reached by my associates except in so far as it affirms the judgment of the district court as to the town lots in Nampa. I do not think it was ever contemplated by said district irrigation act that a railroad right of way could ever be benefited by irrigation, or that such right of way would ever become susceptible of irrigation from a system of works that might be used by an irrigation district for irrigating the lands in the district. The (first section of said act refers to lands susceptible of “one mode” of irrigation, and was never intended to .include lands, in assessing benefits, that were never intended to be irrigated.
The record, to my mind, clearly shows that those who organized this district, and the governing authorities of the district for at least three years after it was organized, did not consider the railroad right of way as land coming within the terms of said district irrigation act as being lands *613susceptible of irrigation. As no benefits were ever assessed against said right of way, the railroad company has not had its day in court, and had no opportunity to contest an assessment of benefits, for the reason that the board of directors never assessed any benefits to said railroad right of way; but assessed each forty acre tract, across which said right of way extends, to the party holding the legal title thereto at $6 per acre. As said railroad company has not the legal title to said tracts and owns only an easement therein, and that easement not having been assessed, the company has not had its day in court in so far as an assessment of benefits is concerned. The judgment of the district court should be affirmed.
(July 6, 1909.)