ON REHEARING.
BUDGE, J.A rehearing was granted in this case on October 14, 1916, and the case was reargued at this present term of court. Upon an examination of the petition for a rehearing and the briefs of respective counsel, and after listening to the arguments of counsel for the respective parties interested in this appeal, it is quite evident that there is an unusual situation confronting this court, growing out not *397only of the question involved, but also of the form of the pleadings required by the statutes in cases of this character.
The only pleading on the part of the appellant required by the statutes is the report of the commissioners of the appellant drainage district;- and a remonstrance thereto is the only pleading permissible on the part of the respondents, which is more in the nature of an answer than a demurrer, and by which mixed questions of both law and fact may be presented, and were presented, in this case in the remonstrances" filed by the respondents.
Under the terms of the statutes providing for the creation of drainage districts, the trial court is required to determine all questions of law and fact, save the two questions of benefits assessed and damages awarded, and as to these questions the court on demand of the person assessed, or to whom damages may be awarded, is required to frame the issues and submit them to a jury.
An examination of the record before us discloses the fact that the questions of law and fact, arising by reason of the report of the drainage commissioners and the remonstrances of the respondents made thereto, are more or less confusing, and questions have been suggested by counsel on the arguments and in their briefs that may become very material in the proper determination of the questions involved in this case, and especially as to the proper construction of the drainage act, upon which this case is based and the future policy of the law with reference to the creation of drainage districts within the State, and the assessment of benefits. In this ease the trial court construed and acted upon the remonstrances as demurrers to the report of the drainage commissioners, thereby ignoring the numerous issues of fact presented by such remonstrances, the determination of which may have an important bearing upon the final determination of the legal questions presented by such remonstrances. It further appears to this court that whatever questions this court may determine on the record before it, still the case must go back for trial. It seems hardly proper to call upon this court to definitely determine many of the legal questions that may be *398presented on the present record, and especially to construe the drainage act and amendments thereto as applicable to this ease, when it is apparent from the record and suggestions of counsel that other facts should be pleaded and the questions of law and fact should be segregated, and such questions of fact supported by testimony.
In view of the foregoing, the trial court will proceed to frame the necessary issues by allowing proper amendments to all pleadings, and-will receive evidence touching the liability of respondents, as well as that of all other property owners claimed to be liable to assessment for the purpose of making the proposed improvement, whether now in the district or hereafter included or properly sought to be included therein, and the legal questions considered by the court on the former hearing will not be deemed the law of this case, or as binding on the trial court upon the trial of this case, and this court hereby expressly reserves the right to place a final construction upon the drainage act and the amendments thereto as contained in the Session Laws of 1913, at page 58, and the Session Laws of 1915, at page 124, until such time as these acts are before this court in proper form as herein indicated.
The order of the district court is therefore reversed, and the cause remanded for further proceedings, with the privilege allowed to the parties to this proceeding to amend the pleadings in the trial court in such manner as may be proper. Costs are awarded in favor of appellant.
Sullivan, C. J., and Morgan, J., concur.