Dissenting. — I have carefully examined the entire record in this case, and do not agree with the facts as stated or the conclusions reached in the majority opinion. Because I think it announces an unsafe and utterly untenable view with regard to the taxing power of irrigation districts and seriously impairs individual property rights, I deem it worth while to express my views.
The more important facts are as follows: In 1904 the :state contracted with a Carey construction company to ibuild an irrigation system, and procured from the govemiinent a segregation of about 15,000 acres of land to be reclaimed under the federal Carey Act. These lands are in Elmore county, near Glenn’s Ferry, and the project is tfcnown 'as the King Hill irrigation system.
The original construction company was unable to carry ,out its contract with the state, and in 1908 the King Hill .Irrigation & Power Company, having acquired its interest, made a new contract with the state to complete the system and reclaim these lands. The water was diverted from the Malad River near the northwest comer of Sec. 35, T. 6 S., R. 13 E., B. M., about thirty miles from the place of intended use. The system was completed by the construction company to such an extent that a partial distribution of water was made, and crops were thereby raised for about ten years prior to this controversy. A large part of the system consisted of wooden flumes, pipes and siphons laid along steep mountainsides and across deep gulches in a loose wash formation, so that when this soil was wet the foundations would slip, and therefore the canal was frequently out of repair and failed to furnish an adequate supply of water during portions of the irrigating season. Both the state and the government appear to have regarded the system as not sufficiently permanent to entitle the settlers on the project to patents for their respective entries, principally for this reason.
The construction company, with the consent of the state, mortgaged its entire interest before the system had been *103accepted by the state or sufficiently completed to entitle the state to patent for the segregated lands. This mortgage was foreclosed under a decree of the federal court, and the interest of the construction company was purchased by the state for $30,000. From 1915 to 1918 it was maintained at the expense of the state by legislative appropriations. (Laws 1915, p. 79; Laws 1917, p. 7.) The state’s original estimate of its cost was $600,000, but by 1915 there had been expended upon this system $1,600,000, and the legislature by Joint Memorial No. 5 requested the government through the reclamation service to complete the system. (Laws 1915, p. 417.)
Appellants, who own about 2,000 acres, having paid in full the purchase price for their respective interests in this system at the rate of $65 per acre, the price fixed by the state, were excluded from the foreclosure sale. Other settlers appear to have made only the initial payment of about $5 per acre to the construction company, and at the time of the creation of the alleged irrigation district and the assessment for benefits here complained of, these entrymen do not appear to have had any interest in this system except that which their possessory rights might give them.
In 1917, these settlers under this project voted to create an irrigation district and to contract with the government to expend not to exceed a million dollars in betterments. The district does not, and never has, owned any interest in the system, or taken any steps to purchase, condemn or otherwise acquire any interest therein. About ten-twelfths of the district was owned by the state through its purchase at the foreclosure sale, and the remaining two-twelfths is owned by appellants and perhaps a few others who have paid in full for their water rights.
In August, 1917, the reclamation department of the government, the state, and respondent irrigation district entered into an agreement wherein, among other things, it is agreed that the state shall quitclaim its interests acquired in the foreclosure proceedings to the government for the nominal consideration of one dollar; that the department *104will expend not to exceed one million dollars in reconstructing and repairing this canal system; and that the district will repay this money by a levy of an assessment for benefits upon all the lands within the district.
C. S., sec. 4362, reads:
“Whenever the electors shall have authorized an issue of bonds as hereinbefore provided, the board of directors shall examine each tract' or legal subdivision of land in said district, and shall determine the benefits which will accrue to each of such tracts or subdivisions from the construction or purchase of such irrigation works; and the cost of such works shall be apportioned or distributed over such tracts or subdivisions of land in proportion to such benefits; and the amount apportioned or distributed to each of said tracts or subdivisions shall be and remain the basis for fixing the annual assessments levied against such tracts or subdivisions in carrying out the purpose of this chapter.....”
The sixth paragraph of the contract between the reclamation service, the state and the district, to construct these betterments to the system at a cost of not to exceed a million dollars, in part reads:
“The Directors of the District will apportion the benefits of this contract equally per acre of irrigable land to each and every tract of irrigable land in said District for which water is to be furnished.....”
It thus appears that this district, through its directors, in advance of making the assessment, entered into an agreement to disregard the provisions of the statute which require that these assessments shall be made according to benefits, and not according to acreage. It would be interesting to know whether counsel who drew this contract, and who doubtless dictated its terms to the district, did so in ignorance of this provision of the law or in disregard of it, or in the belief that whatever might be done, it would be upheld by the state courts.
Appellants do not contend that they were adverse to the creation of an irrigation district, or to its entering into an agreement for the reconstruction and repair of this system *105in which they were part owners, or that their interest should not be required to pay their rightful proportion of the cost of these improvements, or that the government should not be reimbursed for all of its expenditures in making these betterments, but they do contend that these proceedings should have been taken in accordance with law, which has not 'been done.
In Nampa & Meridian Irr. Dist. v. Petrie, 28 Ida. 227, 153 Pac. 425, this court, speaking through Budge, J., said:
“5. Where a contract is entered into between an irrigation district and the United States, providing, among other things, that arid lands within the jurisdiction of the irrigation district, in order to secure a full water right from a government project, shall be assessed not to exceed $75 per acre, such contract is subject to the laws of this state governing irrigation districts and to the apportionment of benefits thereunder, and the fixed charge to be assessed against the lands of any particular land owner within such irrigation district for such water right will be finally determined by the district court of the judicial district within which said irrigation district is located, as provided by secs. 2400-2403, Rev. Codes.”
These sections are substantially the same as C. S., secs. 4363-4366.
Respondent district contends that appellants, other than the Craster Farm & Orchard Company, have by an agreement executed under seal expressly waived their right to question the validity of this assessment. I think this contention should be sustained, if the district in its incomplete state of organization has any authority whatever. But the situation of appellant .Craster Farm & Orchard Company is different. It owned a one-twelfth interest in the entire system, which it had purchased in accordance with the contract between the state and the construction company at a cost of $78,600, and had been in possession of such interest for approximately ten years as a tenant in common with the owners of the remaining interest, which after the foreclosure proceedings in the federal court was first the state, and *106after it quitclaimed its interest, the government. The rights acquired by this foreclosure sale included all the rights of the construction company against the settlers who had defaulted in payment for their respective water rights, and constituted a majority holding. Neither those who created the district nor the district itself had or have since taken any steps to acquire the old system. The records in the state reclamation department show that in 1922, and since this appeal was taken, the government has patented to the state practically all of the lands in this segregation. From this it may be inferred that the system has now been sufficiently completed to warrant the issuance of patent to these settlers, and if so, those who have not paid anything upon the old system, and who are now permitted to receive their patents, should of course hold their rights subject to the payment of the cost of these improvements, but they should not be permitted to take over the interest of those who did pay for their interests in the original system, by the subterfuge of going through the preliminary steps of organizing an irrigation district, and thereafter share upon an equal basis rights in the new system.
The majority opinion does not claim that the proceedings taken by the respondent district were lawful, but invokes the doctrine of estoppel, which has no application here because appellant is now appearing and objecting at its first opportunity. Manifestly, it would have 'been an idle proceeding for it to have appeared before the irrigation board and objected to this assessment, first, because the board had already bound itself in an agreement with the reclamation department to levy this assessment according to acreage and not according to benefits, and secondly, because this board could not be expected to view the claim of appellant impartially, because of the interest of its members. For this reason, the statute makes the district court, in these proceedings to confirm, the proper tribunal to determine the rights of the parties.
The procedure followed by the irrigation district is so plainly in violation of the law governing irrigation districts, *107and so manifestly inequitable, that it should be a matter of surprise that anyone would urge its justification. Among the sixty-nine points argued on behalf of respondent district, one is that the district having -been in control of this system for more than five years, the statute of limitations has run against appellants. The statement that one who owns a paid-up interest in an irrigation system, as a tenant in -common with the other owners, while he is in the possession of the use of the water, may lose his right by adverse possession, is not worthy of consideration.
The petition for the organization of the district states among other things that:
“. . . . It is proposed to purchase irrigation works already constructed.....”
C. S., see. 4314, provides that:
“The petition (for the organization of a district) shall state whether it is proposed to purchase irrigation works already in operation or to construct new works.”
The original irrigation district law, Laws 1895, page 183, at page 192, and all subsequent amendments to this law, make it perfectly clear that it was never intended that the organization of an irrigation district could be completed without such district acquiring some interest in the private property it was taking. By a convenient fiction of law, the proceedings to create a district are held to be in rem, which permits such districts to take the property of individuals without any personal service of process.
In addition to the taxing units that were recognized by the constitution, such as counties, cities, school districts and the like, the legislature has since provided for the creation of irrigation districts, drainage districts, highway districts, elevator and warehouse districts, and possibly other forms of taxing units, all of which exercise their right to tax the individual with such frequency that it is seriously impairing the right of the individual to own and control his property, and if further extended, must ultimately result in destroying the value of private property. The power of these taxing units should not be extended by judicial construction, *108and an irrigation district should not be permitted to take over the interest of the individual in an irrigation district privately owned and merge the same into the property of the district, without paying any compensation to the owner for such property, and thereafter exercise the right to tax all of the property within the district upon the same basis that the property of those who had no interest in the original system is being taxed.
The constitutional guarantee of life, liberty and the pursuit of happiness includes the right to acquire and hold property, of which right the subject cannot be divested without due process of law or according to the law of the land, which was defined by Mr. Webster in the Dartmouth College v. Woodward, case:
“By the law of the land is most clearly intended the general law; a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property and immunities, under the protection of the general rules of society.” (4 Wheat. (U. S.) 518, 4 L. ed. 629.)
This government has steadfastly refused to recognize certain foreign governments, largely for the reason that the laws of such foreign governments do not protect the property rights of the individual, but hold that all property belongs to society in general, and may be taken from the individual for the use of the majority, without compensation.
In the instant case, the method of taking appellant’s property in this Carey project for the purpose of creating an irrigation district that would contract with the government to reconstruct the same, and charge the cost of such reconstruction to all users alike, may be a somewhat more indirect and refined method of taking property without due process of law than that practiced by the soviet governments, but it nevertheless results in taking the property of the individual, without compensation and against his will, for the benefit of the majority. This is a practical application of the socialistic theory of property rights carried out *109in its most objectionable form, and has no place under a constitutional form of government which is intended to protect the rights of the minority as well as the majority.
I think the judgment of the court in confirming the assessment made against this appellant’s land should be reversed, and' this district required to proceed in accordance with the plain intendment of the statute.