(dissenting). I dissent. It is undisputed that the petition presented to the drain commissioners of Sargent county prayed for the establishment of a drain wholly within that county. It is also undisputed that it was the purpose of the petitioners to petition for the establishment of an intracounty drain only, and that a drain extending into other counties was not within their contemplation. The drain commissioners of Sargent county on October 17, 1905, made an order establishing the drain as petitioned for, except that the starting point was located a half mile further south and a half mile further west. Such starting point was half a mile from the Ransom county line, and precluded the possibility of connection with a Ransom county drain. In fact it is not contended that the drain as petitioned for or established was intended to carry waters from Ransom county lands; and the record clearly shows that the Sargent county drain commissioners did not intend such drain to connect with or be a part of a drain into Ransom county. In March, 1906, however, the Sargent county drain commissioners met jointly with the drain commissioners of Rich-land and Ransom counties, and an arrangement was made among the three boards for the construction of a joint drain. Some work was done and expense incurred under this arrangement, but on August 27, 1906, the drain commissioners adopted the following resolution: “Whereas in the proceedings leading up to the original establishment of said drain it has been found by the commissioners aforesaid that the original petitions for the establishment of such drain in the counties of Sargent and Ransom were insufficient in lata to confer jurisdiction upon said commissioners; and, whereas, new proceedings have been commenced and are being carried forward for the establishment of said drain along substantially the same route . . .; and, whereas, in the judgment of said drain commission it is necessary that all proceedings under the original invalid proceedings be abandoned, vacated, and set aside; now, therefore, be it resolved that all proceedings had for the establishment of said drain prior to and which culminated in the assessment levied upon the lands to be benefited by the said drain on the 17th of October, 1905, be and the same are voluntarily abandoned After having adopted such resolution, the drain commissioners issued a written notice over their signatures to the effect “that all proceedings under the original attempt to establish and construct the said tricounty *168drain . . . have been by the said boards of drain commissioners voluntarily abandoned because of jurisdictional defects in such proceedings.” It is true that the board of drain commissioners of Sargent county subsequently made an order establishing what they designated Tricounty Drain No. 1. It is conceded, however, that no new petition was filed asking for such drain, and that the only basis for the order establishing it was the petition filed July 27, 1905, which petition had been characterized by the drain commissioners in their resolution (quoted above) as being “insufficient in law to confer jurisdiction upon said commissioners.” It is not denied that Tricounty Drain No. 1 is wider, and that its construction required greater expense, than the drain contemplated by the signers of the petition. The extra width became necessary by reason of the extension of the drain into Hansom county.
In view of all these facts can it be said that there was any petition before the drain commissioners of Sargent county for the establishment of the so-called Tricounty Drain, — the drain involved in this action? I think not. Of course if they had no petition, they had no jurisdiction. And where there is no jurisdiction there can be no estoppel against assailing the validity of the proceedings. See Hamilton, Special Assessments, § 726. The fact that the railway company knew the drain was being constructed merely conveyed notice of this fact, and it had the right to believe that the drain commissioners would proceed in the manner provided by law, and in such manner only, and that its property would be assessed only for such share of the cost of the improvement as was legally chargeable against it. It has been held that even the signer of a petition for the construction of an improvement is not estopped to assail the validity of the proceedings, where the officers to whom the petition is addressed have not acted in accordance with law. It has been said that in such case “there is no presumption that by asking for the improvement he desired it done other than according to law, or that he intended to bind his property for more than his share of a legal assessment.” Hamilton, Special Assessments, § 725. Of course if the property of the plaintiff has been benefited by the improvement, it should pay its just share of the cost of the improvement, not exceeding the amount of such benefits. But inasmuch as the drain commissioners had no jurisdiction, their assessment against the *169plaintiff’s properly fails, and it is entitled to have the amount of such assessment determined in the manner provided by law.