Concurring in Part and Dissenting in Part. With respect to that portion of the opinion which holds that: “If the ditch or canal is constructed prior to the establishment of a public highway which intersects it, the expense of building the bridge must be borne by the county or highway district to which the road belongs,” I concur. But it should be noted that the previous decisions of this court (MacCammelley v. Pioneer Irr. Dist., 17 Ida. 415, 105 Pac. 1076; City of Twin Falls v. Harlan, 27 Ida. 769, 151 Pac. 1191) make the question of the duty or the lack of duty on the part of those constructing canals to bridge them, turn upon the question of whether or not the roads were in actual use or were actually constructed at the time the canals were built. Applying that test to this case the demurrer should be sustained.
I am unable to concur, however, in that portion of the opinion which holds that the board of county commissioners of Lincoln county exceeded its authority in the order of January 12, 1909, declaring all section lines public highways. Sec. 2477, Rev. Stats. U. S. (U. S. Comp. Stats. 1916, sec. 4919, 6 Fed. Stats. Ann., p. 498), grants a right of way for highways over public land. The Carey Act granted certain of the public lands of the United States to the state of Idaho. The legislature accepted the conditions of the Carey Act, sec. 1613, Rev. Codes. See. 3 of the Carey Act provides:
“Any state contracting under this section is hereby authorized to make all necessary contracts to cause the said land to be reclaimed.”
By sec. 1613, Rev. Codes, the selection, management and disposal of said lands is given to the state board of land com*240missioners. See. 16 of the contract between the state of Idaho and the respondent company, which is binding not only on said company, but upon all settlers taking up land thereunder, provides:
“Entries of land are understood to be made subject to a right of way without compensation to the entryman for roads upon all section lines and also upon half section lines which may be designated by the board of county commissioners, as may be provided by law.”
This would seem to be a sufficient acceptance of the grant on the part of the state, and defines the location upon which roads may be designated. The board of county commissioners of the county in question entered an order declaring all section lines in question to be public highways.
In my opinion the provisions of the Rev. Codes, sec. 916 et seq., were evidently intended to restrict, limit and define the mode of exercising the right of eminent domain, that is, the right of the county to take private property for a public use. Sec. 934, Rev. Codes, provides:
“Public roads may be established without the appointment of viewers, provided the written consent of all the owners of the land to be used for that purpose be first filed with the board of county commissioners; and if it is shown to the satisfaction of the county board that the proposed road is of sufficient public importance to be opened and worked by the public, they shall make an order establishing the same, from which time only, shall it be regarded as a public road. ’ ’
If I understand respondent’s contention correctly, it is that notwithstanding all of the land in question was taken with the right of way on section and half-section lines, reserved, and, therefore, the consent of the owners would not be necessary, that the consent in some manner ought to be filed with the board. It will be noticed, however, that the written consent which is to be filed with the board is, “of all the owners of the land to be used for that purpose.” Here the owners of the land in question owned it subject to the easement, for the government had granted a right of way over the land and the state had expressly reserved the rights of way in question *241so that there are no owners within the meaning of this section who need be consulted. It is a fundamental principle of law that no one is required, much less a public officer or public board, to do a vain and useless thing, and to require the filing of a written consent where no written consent is necessary and where there is no one to either consent or dissent, would avail nothing.
The question of whether or not it is shown to the satisfaction of the county board that the proposed road is of sufficient public importance is a question addressed solely to the sound discretion of the board, and the fact that the board made an order which is duly and regularly entered of record, designating certain roads, would be an acceptance of the grant, and would carry with it the presumption that the board was satisfied that the roads were of sufficient importance and necessary.
I am of the opinion that the proceedings of the board were perfectly regular and constituted a valid acceptance of the grant, but even if they were not, I think the board had ample authority to enter the order. (Streeter v. Stalnaker, 61 Neb. 205, 85 N. W. 47.)