(dissenting). I am unable to concur in the opinion of the majority of the court as in my judgment the facts stated in the complaint clearly bring the case within the provisions of section 721 if not under section 713 of the Code referred to and quoted in the opinion. In my judgment the title .to the land over which the drainage ditch is constructed became the public property of the county, and therefore the facts presented by the complaint bring the case clearfy within the provisions of section 721, and hence the construction of a drainage ditch is an improvement upon public ground of the county. By section 3 of chapter 102, Laws of 1909, amending section 5 of chapter 134, Laws of 1907, it is provided that the commissioners “shall assess the damages sustained by each tract of land or other property through which the same shall pass, and the damages as compensation for the land taken for the route of such drainage.” By section 25 of the act of 1907 it is provided that "the title to the right of zvay of drainage may be derived by consent or purchase from the owners of the lands through which the same may pass as well as by the method of condemnation herein provided.” This, it seems to me, shows conclusively that by the condemnation proceedings referrefl to the title to that portion of each tract of land over which the ditch is constructed passes from the owner. To whom then does it pass? Clearly it does not pass to the owners of the land within the *351drainage district, as such owners are not made a corporation or vested with the power to take and receive the title. As the county is the party that exercises the right of eminent domain in acquiring the property over which the ditch is constructed, it necessarily follows that the. county is the party that acquires the title to the same, in trust, of course, for the benefit of the persons owning-property within the drainage district. If this were not so, no person or corporation would be authorized to institute a suit for the protection of said drainage ditch from injury or destruction or to recover damages resulting from such injury or destruction. It will be noticed that the title to the land over which the ditch is to be constructed may be acquired by purchase as well as by the exercise of the right of eminent domain. When the right is acquired by purchase, who is to be the grantee in such a case unless it is the county? The reasoning in the opinion of the majority of ■the court seems to leave the title to the property over which the ditch is constructed and taken by condemnation proceedings or by voluntary conveyance of the parties vested in no individual or corporation. Construing, therefore, the Drainage Act in connection with section 721 quoted in the opinion, it seems to me clear that the title to the 'drainage ditch is vested in the county and is public property.
In the recent case of Bates County v. Wills, 190 Fed. 522, 111 C. C. A. 354, the United States Court of Appeals of this circuit, in construing the Drainage Act of Missouri, which seems from the opinion to be very similar to the Drainage Act of this state, says: “Viewing the legislation of the state relative to these drainage districts, we think it apparent that dtainage districts were merely political subdivisions of the county for the special purposes of drainage, and were not at the time the contract was entered into created corporations capable of suing and being sued. The whole proceeding for the establishment of drainage districts, construction of ditches, assessing property therefor, and providing the funds to pay for the construction, was vested in the county court. * * * That the district formation was for the purpose of designating the territorial part of the county to be assessed for the payment hereof. Contracts of this character are analogous to those of a city, which establishes paving and sewer districts, issues paving and sewer district bonds, in which the real estate in *352the particular district only is assessed for the improvement, the work being done on the theory that it is a local benefit, and the expense borne by the property specially benefited.” Davenport v. County of Dodge, 105 U. S. 237, 26 L. Ed. 1018. It is hardly necessary to state that the county court of Missouri has the same powers and duties as boards of county commissioners in this state.
It will be observed by the provisions of the Drainage Act that the contract for the expenses incurred -by the construction of the drainage ditch is to be made by the county, and under the ruling of the Supreme Court of the United States in the case of Davenport v. County of Dodge, supra, and in the opinion in the Bates Case, supra, the action upon the contract may be properly brought against the county and a special judgment entered providing for the payments' of the same by taxes levied and collected from the property within the drainage district. By a • fair construction, therefore, of the Drainage Act and in view of these decisions by the Supreme Court of the United States and the appellate court of this circuit, I am clearly of the opinion that the title to the land over which the drainage ditch is constructed is vested in the county.
It is suggested by Mr. Justice SMITH in his concurring opinion, in effect, that no appropriation of the funds had been made to this specific purpose, but in my opinion no appropriation was necessary, as the drainage • law itself appropriates the fund ■derived from the assessment of the property to the payment of damages and the expenses of constructing the ditch. The demand for judgment in the complaint in this case only requires the county to pay over to the plaintiff the amount due the contractor. The plaintiff, ’ therefore, does not seek to recover any of the county funds proper, but simply demands judgment adjudging him to have a lien upon the amount so due said contractor, and that the same be paid over to the plaintiff. Assuming as we may from the fact that the contractor makes no defense to the action that the amount claimed by the plaintiff is justly due him for materials furnished in .the construction of the drainage ditch, I am of the opinion that the statute should be liberally construed in favor of the plaintiff; as it is. clearly not material to the county whether *353the amount so due the contractor shall be paid to him or to the plaintiff.
HANEY, J. I think the order appealed from should be affirmed.