ON PETITION POR REHEARING.
Beard, Chiep Justice.Counsel for plaintiff in error have filed a petition for a rehearing in this case, and in their brief in support of the same still insist that the canal in question should not be held to be subject to taxation, because to so hold would tend to retard the development of the resources of the state. That would be a proper argument to present to the legislature, hut the courts are without authority to exempt property from taxation, for that -or any other reason, which the statute does not exempt. It is further insisted that the demurrer to the petition should have been overruled and plaintiff in error permitted to show the extent of the interests of others in the canal, and should have afforded the company relief to that extent. To this there are two answers. First, the deeds as recited in the petition do not purport to convey any title to the canal, but only the right to use it for the ■ purpose of conducting water to the lands of the grantees. The language is, “the said party of the first part does hereby sell, transfer, convey and quit claim unto said party of the second part — perpetual water right — to have the use of-the water flowing through that portion of its irrigation system constructed, or to be constructed, for the irrigation of lands herein described, each watér right representing and being the proportionate right to use one-half cubic foot of water per second of time, during the irrigation period of each year.” And again, “said water right, so sold and *82conveyed as aforesaid, shall be a proportionate right to the use, for domestic and irrigation purposes upon the lands herein described, of the water authorized by the permits of the state engineer to said party of the first part, to be appropriated through and by means of its canals, together with a proportionate right, share and interest in the use of said canals and lateral ditches with all rights incident thereto,” etc. We think it thus clearly appears from the petition that the company holds the legal title to the entire canal, and that it was not its intention to part with that title, or its control over the canal, except in some one of the three ways mentioned in the opinion; which, as there stated, has not been done. Second, the company not only held the legal title to the entire canal, but was the absolute owner of a large part of it, and owned no lands and had no contracts with other owners of lands to which the part of it so owned might in the future become appurtenant. Being such owner, it was required in justice and equity to pay what was justly and equitably due; and having neither paid or offered to pay any part of said taxes, it is not in a position to invoke the powers of a court of equity in'its behalf. (U. P. Ry. v. Ryan, 2 Wyo. 408; Horton v. Driskell, 13 Wyo. 66; National Bank v. Kimball, 103 U. S. 732.) It has also been held by this court that where a person has some personal property subject to taxation but is assessed for more than he claims to own, the remedy is by application to the board of equalization for the correction of the assessment, and not by injunction to restrain the collection of the tax. (Board of Com’rs. v. Searight Cattle Co., 3 Wyo 777; Ricketts v. Crewdson, Treas., 13 Wyo. 284; Crewdson v. Nefsey Co., 14 Wyo. 61; See also N. P. R. R. Co. v. Patterson, 10 Mont. 90, and Delinquent Tax List v. Territory, 4 Ariz. 186.) In the present case the tax is not an illegal tax in the sense of being a tax not authorized by law, and as we hold that the interest of the company in the canal is subject to taxation, the case comes within the rules announced in the cases above cited, and the petition does not *83present a case for equitable relief by way of injunction. The former opinion is adhered to and a rehearing denied.
Rehearing denied.
Potter, J., concurs.
Scott, J., did not sit.