concurring: Standing timber is real property for the purpose of devolution and transfer, but the owner of the timber does not own the soil. lie has merely the right to the support of the soil for his timber during his term, and has no right to cut ditches at pleasure, and if so, it would not seem that he could impose this burden on the owner of the soil.
Nor are assessments based on a valuation of the property, as taxes are, but on the amount of benefit to the property assessed. “The foundation of the right to levy assessments is the particular benefit received by the land assessed,” and “There can be no assessment in excess of the benefit received” or “where there is no benefit.” 9 R. C. L., 953. “The benefit must be certain.” 9 R. C. L., 954.
The last principle seems to have been violated by the assessors, as it is not within the bounds of probability that the gum timber of the plaintiff could be benefited by the proposed drainage in the amount of $9,962.50, the assessment laid on the plaintiff’s timber, during five years, to which time its right to cut is limited.
A brief summary of parts of the drainage act also demonstrates, I think, that the assessment of timber was not within the contemplation of the General Assembly.
Section 3 : The drainage districts are formed “for the purpose of draining and reclaiming wet, swamp, or overflowed lands.”
This shows that the main purpose of the act is agricultural. The owner of the timber has no wet, swamp, or overflowed lands to be drained or reclaimed. He owns nothing except the timber..
Section 2: The petition for the establishment of a district may be filed by a majority of the resident landowners, or by the owners of three-fifths of the land.
Suppose four nonresidents own all the land in the proposed district, and they sell different parts of the timber to five nonresidents. Could these five file a petition against the will of those who own the soil, or *123.could, they by refusing to join in the petition prevent the other four, who own the soil, from the possibility of establishing a district. If' they are landowners within the meaning of the statute, they have this right.
Section 12: In making assessments the appraisers must consider “degree of wetness” of land, “its proximity to the ditch,” and “the fertility of the soil,” “in determining the amount of benefit it will receive by the construction of the ditcli.”
“It” evidently refers to “soil.”
Section 19: The three drainage commissioners are to be appointed from those receiving the vote of a majority of the owners of land.
If there are four owners of the soil and five owners of timber, can the five elect the commissioners? They can if they are owners of land within the meaning of the statute.
Section 31: The assessments are against “the several tracts of land.” Is a timber bolding ever referred to as a tract of land?
The amount shall be assessed against “the several tracts of land” according to “the benefit received.”
Does gum timber receive any appreciable benefit within five years?
Section 32: Provides for bond issue for construction of the improvement.
Section 34: These bonds are to be paid in ten annual installments out of the assessments, which “shall constitute the first and paramount lien, second only to county and State taxes.”
If the standing timber -is assessable separate from the land, and if the assessment is a lien on the timber, the owner of the bonds can restrain the cutting of the timber until the bonds are paid, and if the term for cutting is less than ten years, as in 'this case, the owner of the timber would lose all of it, as he could not cut within the ten years because to permit him to do so would decrease the security of the bondholder and the timber not cut within that time would belong to the owner of the soil.
■ Section 37: This act is “to promote the leveeing, ditching, draining, and reclamation of wet and overflowed lands.” The owner of the timber has no “wet and overflowed lands.”
It is urged, however, that if this construction prevails, it will enable the owner of the land to sell his timber, thereby depreciating the value of his land, and that this will have the effect of decreasing his assessment and of increasing the assessment of his neighbor; but this position is upon the erroneous idea that the assessments are based on values and not benefits.
I think no instance can be found of the establishment of a drainage district except for the purpose of reclaiming lands for cultivation, and *124as tbe timber must be cut and removed before tbe proposed improvement is complete, tbe sale of tbe timber .with a limited time for its removal would rather increase tbe value of tbe land than decrase it for tbe purpose of tbe act, which is for cultivation.