ON PETITION POR REHEARING.
AILSHIE, J.A petition for rehearing has been filed .in which complaint is made that the court did not cite or review the authorities cited in appellant’s brief. The court has not the time, nor does it often deem it necessary, to review at length in written opinions the authorities cited by counsel. Authorities are only useful in so far as they elucidate the reasons for a given rule and make plain the justice such rule accomplishes.
Without stating the several propositions advanced by appellant’s petition, we will refer briefly to the more prominent ones.
First. It must be admitted as fully settled that a railroad right of way acquired under act of Congress of March 3, 1873, cannot be used or alienated for any other purposes than those named in the grant, and upon a cessation of such use the right granted reverts to the owner of the fee. (Northern Pac. Ry. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. ed. 1044.) If, therefore, a sale should be made of the railroad company’s right of way, the purchaser would acquire only such rights and interest as the *614company possessed, and would be limited to the same conditions and restrictions as to use as were imposed by the original grant. A purchaser at judicial sale under decree of court can acquire only such title and right as the defendant in the action has. (Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Ida. 5, 93 Pac. 789.)
Second. Assessments by irrigation districts are made on the land itself — the soil, irrespective of the use. The decisive question is not the use to which an owner is going to devote his land, but: Is it susceptible of irrigation from the proposed system of irrigation? For such purposes an assessment against the land itself as belonging to the owner of the fee or paramount title covers all special and limited rights, interests and easements in the land. While it is generally held that land dedicated to a public use cannot while so held and used be assessed for a similar public use or necessity, this does not apply where the ownership of the easement, right or franchise is private and the use only to which it is applied is quasi public. In such case the use can be as readily carried out and enjoyed by the public with the ownership in one corporation, organized and created for such ownership and management, as in the hands of another. Where the ownership is in the public, a very different question arises.
Third. As to whether a sale of appellant’s right of way takes only appellant’s easement and right or the entire fee and reversionary right is unimportant here. It is enough for appellant if a sale would take all its right and vest the same in the purchaser. Of that we think there can be no doubt. That the assessment must be on the basis of benefits to be received is equally true. But that question cannot arise in this case. The company has had its day in court, both before the commissioners and in the district court on confirmation proceedings, and the judgment therein is now final, and the company can no longer be heard to question the benefits to be received. As a matter of fact, it is common knowledge that in this state railroad companies do irrigate *615a part, at least, of their station grounds at all such stations as they can conveniently get water, and it was admitted on oral argument of this case that appellant does irrigate a part of the station grounds covered by this controversy. "Whether it be from this system or not is immaterial for the purpose of this inquiry.
The question of notice was fully covered in the original opinion.
Fourth. It is contended that a sale of a portion of appellant’s right of way cannot be made. Elliott on Railroads, vol. 2, sec. 790, treating of the subject of assessments on a railroad right of way, says:
“While it is probably true that there may be a lien on the right of way of a railroad for a local assessment, where such assessment is authorized by statute, the manner of enforcing such assessment is not clearly settled. The right of way of a railway company is a part of the company’s property, without which it could not perform the duties it owes to the public. To subject a portion of the right of way to a sale to enforce a local improvement would greatly embarrass, if not entirely destroy, the ability of the company to perform its public functions. The rights of the public are regarded as superior to the rights of any individual, or group of individuals. Local assessments are usually levied on a small portion of a railway right of way, varying from a few feet in length to miles in length. To permit such portion to be sold would prevent the operation of the road, and, on the grounds of public policy, it is held that the ordinary remedy of enforcing the collection of a local assessment by a sale of the property benefited does not apply to the enforcement of an assessment against the right of way of a railway company. While there is a conflict of authority on this subject, the decided weight is that the right of way, if sold to pay the assessment, must be sold as a whole, and not in broken fragments.”
It will be seen from an examination of the cases cited in the note to this text, as well as the text and notes in 28 *616Cyc. 1211, that the great majority of the courts have held that a railroad right of way cannot be sold in parcels or fragments for the satisfaction of - local assessments. There are courts, however, which hold to the contrary. This is particularly true in the state of Illinois. (Wabash & Eastern Ry. Co. v. East Lake F. Dist., 134 Ill. 384, 25 N. E. 781, 10 L. R. A. 285; Chicago & N. W. Ry. Co. v. Village of Elmhurst, 165 Ill. 148, 46 N. E. 437.)
It seems to be- conceded by all the authorities that the legislature has the power to authorize the sale for local assessments of a portion only of a railroad right of way, or, rather, of the portion or division situated within the taxing district. It is also true that practically all the authorities holding that the right of way, if sold at all, must be sold in its entirety, rest, not upon any constitutional or organic right, but upon what is termed “public policy.” It is said by these authorities to be contrary to the public interest and convenience, and detrimental to bondholders and the railroad company to have a railroad right of way sold in sections or subdivisions. The reason for this rule fails to appeal to us. The danger of a railroad system being divided into numerous sections and sold to divers purchasers is too remote and improbable to furnish a basis or premise on which to deny justice to taxing districts and a ready means of collecting assessments lawfully levied. We may say here that we know of no principle of public policy in this state that forbids the sale of a portion of a railroad right of way. In order for a principle or rule to have become a part of the public policy of a state, it must have been either expressly or impliedly recognized and acted upon by some one or all of the departments of state government, or have found lodgment and recognition, either expressly or impliedly, in the constitution, the organic law of the state. No such principle has been either expressly or impliedly recognized in this state. The contrary has been the uniform rule recognized by the legislative department of this state and enforced by the executive and judicial departments in *617the revenue laws of the state. The irrigation district act (sees. 2407-2415, Eev. Codes) directs and requires that the specific property on which the assessment is levied shall be advertised and sold in the event the assessment is not paid. The assessment can only be made upon property within the taxing district. We find, therefore, that the legislature has provided that only such portion of a railroad company’s property as is situated within an irrigation district can be sold. As for a sale of a portion of a company’s right of way being any more detrimental to the public interest than a sale of the whole, it is difficult to understand. We do not see how the railroad company, not being the public itself and not being the representative of the public, can complain if a taxing district sells less than the whole line of its right of way. The purchaser would acquire the same rights as the railroad company held, and would be entitled to operate trains over the road the same as they were previously operated by the original company. It makes no difference to the public whether one company or another is operating a railroad system. But this discussion of the sale of fragments and! subdivisions of a railroad right of way for local assessments is purely theoretical and imaginary. It has almost uniformly arisen in eases where the company was seeking to prevent a sale. The cases are extremely difficult to find, as a matter of fact and in practice, where a railroad company has suffered a sale either of its whole line or any portion thereof for a local assessment. The company that cannot pay a local assessment is not able to operate its road anyway, and a company that will not pay, after it has been judicially determined that it should do so and that it is legally bound to do so, ought to be put out of business and succeeded by one that is law-abiding. Fortunately, and to the credit of the railroad companies operating in this state, it has never been found necessary to actually make any such sale in Idaho for a local assessment.
*618We discover no reason for granting a rehearing. Petition denied.
Stewart, EL, concurs. Sullivan, C. J., thinks a rehearing should be granted.