(dissenting).
In my opinion the court proceeded properly on the first hearing to determine the question whether the proposed ditch, if constructed, *396would be of public benefit and utility, and a retrial of that issue was rightly denied relators on the second hearing. Section 3, c. 448, p. 646, Taws 1907. That question lies at the threshold of the authority of the court to order the ditch, and it should be determined at the first opportunity, to the end that, if resolved against the petitioners, unnecessary expense may be avoided. As I understand the record in this case, the court below determined this question on the first hearing in these proceedings and declined to hear evidence thereon at, the second hearing. No evidence was excluded on the second hearing in respect to the damages resulting from the ditch to the owners of adjoining land. The statute referred to confers upon the court power to defer this particular question until the second hearing, whenever in its opinion expedient or necessary; but it is not required to' postpone it when the evidence on the first hearing is sufficiently full and complete to enable the court to reach a conclusion. Nor does it follow necessarily, from the fact that the court on the first hearing finds that the ditch will serve the public ends, that it' must in any event order the ditch constructed on the final hearing. If on the final hearing it should turn out that the damages exceed the benefits flowing to the property owners, the whole proceeding may be dismissed, notwithstanding the previous finding of public utility.