(on rehearing). In their motion for .rehearing, counsel for appellant earnestly insist that under the statute the county and not the district is liable for the damages suffered by the landowner for the land taken for the purpose of widening the highway in question. They rely on section 36 of act 338 of the Acts of 1915. See Acts of 1915, page 1400. The section in question provides that it shall be the duty of the board in changing the route of any road to lay it out in accordance with the provisions of act 422 of the Acts of 1911 and they claim that under this section the county would be liable for damages to land taken in changing the road. In making this contention counsel have not taken into consideration section 12 of the act in question. This section in express terms provides that the damag-es shall be paid out of the funds of the district, or by a reduction in the assessments of benefits.
(6) Again it is insisted by counsel that the court erred in not holding that the method of procedure should be in accordance with the provisions of act 422 of the Acts of 1911 as provided in section 36 of the act under consideration. In making this contention counsel have not considered section 37. The two sections must be read and construed together. Section 37 provides that if any owner of real property in the district demands the assessment of damages to his property by reason of the improvement by a jury, the board shall institute an action in tlie circuit court for the condemnation of said land which shall be in accordance with the proceedings for the condemnation of the right-of-way of a railroad. The commissioners commenced this case in the circuit court under section 37. They attempted to dismiss their action, but the landowner objected. This was tantamount to an election to have the commissioners proceed under section 37, and the court properly refused to allow the commissioners to dismiss their action in the circuit court, and proceed under section 36.
The motion for a rehearing will be denied.