Concurring in Part and Dissenting in Part. I concur with my associates to the extent of holding that sec. 9a, chap. 42, Sess. Laws 1915, is a valid and constitutional exercise of the police power by the legislature. To my mind it is well within the constitutional power of the legislature to require high lands or even canals or irrigation systems to contribute to the reclamation of low and water-logged lands to the extent that such high lands and canals and irrigation systems are responsible for damage to such low lands from seepage and saturation by irrigation water, and, as has been so ably indicated in the majority opinion, the constitutionality of such an act is supported by two sound legal propositions : First, as a valid exercise of the police power; second, as a return or partial return, with the necessary appropriate modifications, to the common-law liability, long since departed from in the arid states, under the general power of the legislature to define the public policy of the state as changing conditions, in its wisdom, seem to warrant, and to continue in force, abrogate or return to operation the princ'ules of the common law in whole or in part, whether departed from by judicial fiat or legislative enactment.
I am unable to concur, however, in that portion of the majority opinion which holds that the words “high land” and “high lands” as used in sec. 9a were intended to include canals and irrigation systems. Neither do I think that canals or rights of way for canals are “tracts of land” within the meaning of the act of 1913, or sec. 9a, amendatory thereof in the laws of 1915, but the words “tract of land” refer to tracts of lands as commonly understood. That is to say, if one were speaking of tracts of lands one would not be understood to mean canals or rights of way for canals, no more than one would be understood to mean canals or rights of way for canals, if speaking of “high land,” “high lands” *775or “low lands,” as such terms are used and understood in their common acceptation. These words can have no possible reference to canals or rights of way for canals. The legislature could, in my judgment, use no language which would have more clearly excluded canals and rights of way for canals, from assessments by a drainage district than that employed in the act. As I understand it, it is conceded that the drainage act of 1913, rendered liable to assessment only such land within a drainage district as required drainage or diking or both, and which was in need of and would be actually beuefited, by enhancing its value, by drainage. And a careful study of sec. 9a convinces me that it was the intention of the legislature to subject all high lands irrigated within such drainage district to assessment, irrespective of its enhancement in value, but which contributed by reason of its irrigation to the seepage or water-logged condition of low lands.
The exact wording of sec. 9a is as follows: “Sec. 9a. In determining the amount which each tract of land will be benefited by such proposed drainage system the commissioners shall consider the damage done to low land from seepage and saturation by irrigation water from high land, and the necessity for the carrying off of waste water, and such high lands shall be considered as being benefited to the extent and in the amount that such lands are responsible for damage to low lands from seepage and saturation by irrigation water.”
To my mind the words “high land” and “high lands” as they appear in the above section clearly refer to irrigated lands. Had the legislature intended to include canals and irrigation systems in this section the language of the section would have so stated in clear and unmistakable terms. Counsel have by way of analogy called our attention to sec. 1, art. IV, chap. 147, Montana Sess. Laws, 1915. The distinction between this section of the Montana law and see. 9a of our own law is so marked and tends to illustrate so clearly the point at which my associates and myself diverge that I am constrained to set forth at length the material portion of the Montana section, as follows:
*776“Art. IV, Section 1.....In apportioning such cost to defray the expenses involved in the construction of the drain, the following principles shall be regarded, and assessments made in accordance therewith:
“All lands which are swampy, bogged or water-logged and will be relieved and improved by virtue of the construction of the drain;
“All lands which are becoming, or are liable to become, swampy, bogged, or water-logged, and which the construction of the drain will prevent from being thus affected;
“All lands included within the watershed of the drain;
“All lands from which surface or seepage waters will enter the drain, or can be conducted into the drain;
“All lands upon which or through which, .surface or seepage water will be prevented from flowing, or can be prevented from flowing by virtue of the construction of the drain;
“All lands which will sustain any direct benefit of any kind or character whatsoever, other than that sustained by all other lands in the same vicinity;
“All railways, whether operated by steam, electricity or otherwise, whose right of way or roadbed will be benefited or can be benefited by reason of the construction of the drain;
“All owners of irrigation ditches or canals from which water seeps, drains or wastes to, upon or through lands included within the district served by the drain; .... ”
It will be noticed that the above act specifically includes not only swampy, bogged or water-logged lands or lands which were liable to become so, all lands within the watershed of the drain, all lands from which seepage will enter the drain, all lands where surface or seepage water will be prevented from flowing, lands which will sustain any direct benefit, railway rights of way or roadbeds that will be benefited, which would seem to include every character of land which could be included within the boundaries of a drainage district, but specifically inserted the provision, “all owners of irrigation ditches or canals from which water seeps, drains or wastes to, upon or through lands included within the district served by the drain.” It would have been an easy matter for our own *777legislature to have specified in a like or similar manner irrigation ditches or canals, if such had been the intention, and the fact that this was not done persuades me that the legislature did not intend to include canals or irrigation systems.
I think we should presume that the legislature used the words “high land” and “high lands” as such words are commonly understood and in their ordinary acceptation. Irrigation systems and canals have a commonly accepted significance and no one would ordinarily understand that by the use of the term “high lands” canals or irrigation systems were intended. As I have indicated, I do not doubt the authority of the legislature to include irrigation systems and canals and to make them respond according to the measure of their physical responsibility along with high lands and low lands, if such were the intent, but in so doing some appropriate language should be used which on its face would bear that interpretation. It should be remembered that appellant seeks to assess respondents’ irrigation canals, not only in the absence of resulting benefits, but, on the contrary, for the creation of a drainage system, which, in all probability, will result in a positive detriment to the canals, by reason of increased loss from seepage. If such special assessments are to be imposed under the police power, or for the general welfare, or upon the theory that one should so use his own property as not to injure his neighbor, there should be express and positive statutory authority for so doing, and nothing should be left to implication. ‘ ‘ Judicial judgment should not be substituted lightly for legislative judgment.”
I cannot bring myself to believe that the legislature in using the words “high land” and “high- lands” ever intended to include therein or to mean thereby canals or irrigation systems, and I do not feel that what to my mind is the plain and unmistakable meaning of the language used should be extended either by implication or by judicial construction. In order to make sec. 9a mean what the majority opinion has interpreted it to mean, it seems to me that it is necessary by a process of judicial construction to read into the act language similar to that used in the Montana act above quoted, namely, *778“all owners of irrigation ditches or canals from which water seeps, drains or wastes to, upon or through lands included within the district served by the drain. ’ ’ This I am unable to do. Viewing the question in this light, I have felt constrained to record my dissent.
The judgment of the trial court, excluding the canal companies and relieving them from liability to assessment, should be affirmed.
(Petition for rehearing denied.)