On Petition for a Rehearing.
McBride, J.Appellee’s counsel have filed a very earnest and ingenious brief in support of their petition for a rehearing. They say two question are involved:
1st. Is it possible to extinguish the lien of a ditch assessment by the foreclosure of a superior tax lien ?
2d. Who are necessary parties to a suit for that purpose?
There can be no doubt that it is possible to extinguish the lien of a ditch assessment by the foreclosure of a superior tax lien. No such question confronts ¿us in this case, for the reason, as stated in the original opinion, that there was no attempt to foreclose the tax lien as against the ditch assessment.
Counsel now say: “Where a lien such as a ditch assessment exists, and has not reached the period of vesting, the effect of foreclosing a superior lien is not to bar an equity of redemption — none exists — but to extinguish the lien itself.”
The error in appellee’s position is, that he assumes that *310there can be a valid ditch assessment in which no one has an interest entitling him to be made a party to the proceeding seeking its extinguishment, and that it is possible, by a decree of court, to extinguish the lien of such assessment without having before the court any of the parties interested in it. The complaint shows the establishment, by order of the board of county commissioners, of a ditch across the land in question, and that the sum of $261.53 was assessed against it as the proportion properly chargeable thereon fo.r the construction of the ditch. This the complaint also, shows was done long before the proceeding was commenced to foreclose the tax lien. All who were beneficially interested in the construction of the ditch were interested in the assessment thus made against the particular land.
A ditch established by order of the board of county commissioners, for the drainage of wet lands, although it may pass over the lands of many men, and be divided into many allotments for its construction, and the cost of construction may be apportioned to many different tracts, yet it is to be considered as an entirety, and the several allotments and assessments as parts of an entire system. For instance, suppose the allotment to the land in question was of the terminal section of the ditch, and unless it was constructed there would be no outlet, could it be said that the owners of lands living above and assessed for the construction of the ditch had no proprietary interest in such terminal allotments ?
If appellees contention is right, after a ditch has been established a section may be cut out of it, or the outlet destroyed by the foreclosure of a tax lien upon some one of the tracts of land through which it is laid, in a proceeding to which none of those interested in the construction of the ditch are parties, although, as to the remaining tracts, the owners may still be compelled to construct their allotments, or, indeed, may have already done so. If this is true, thei’e is at least oxxe case in which the property rights of a citizen may be taken from him without due px’ocess of law. We *311can not assent to such doctrine. In our opinion the petitioners, and other parties to the proceeding, assessed for the construction of the ditch, had such an interest in the assessment in question that its lien could not be extinguished by the foreclosure of the paramount lien without giving them their day in court.
Filed May 10, 1891.The petition for a rehearing is overruled.