dissenting.
I must respectfully dissent from the majority opinion in this case. Although the majority opinion acknowledges that the Fawcus Springs Irrigation District was duly formed under the provisions of Neb. Rev. Stat. §§ 46-101 through 46-128 (Reissue 1978), it nevertheless holds that in an appeal from a condemnation action the court may look behind the establishment of the district. While the district, on its face, appears to have been validly created, the majority holds that, in fact, it may not possess the powers granted to such duly created districts because a single individual benefits from the district’s exercise of its lawfully given power.
The evidence is undisputed that the Fawcus Springs Irrigation District was lawfully created and, as such, has been given authority to condemn private property for public use after complying with the requirements of law. Those who objected to the creation of the Fawcus Springs Irrigation District, including Chimney Rock Irrigation District, had an opportunity to appeal from the order creating the district at the time of its formation. Having elected not to do so, it should not now, in a proceeding involving the district’s exercise of eminent domain, be permitted to contest the validity of the district. It has long been the law in this jurisdiction that the judgment of a county board establishing an irrigation district cannot be collaterally attacked as to those matters by statute committed to the consideration, investigation, and determination of the board. See State v. Several Parcels of Land, 80 Neb. 424, 114 N.W. 283 (1907). The majority is simply in error when it suggests that the real issue in this case “is whether form is to triumph over substance.” The real issue in this case is whether an irrigation district, lawfully created and empowered by the Legislature to exercise the right of eminent domain, can have *784that authority stripped from it by collateral attack when the district seeks to exercise the authority granted to it by the Legislature.
No one contends that the statutes creating irrigation districts are in any manner invalid and that, once created, the district cannot exercise the right of eminent domain, nor does anyone contend that the Fawcus Springs Irrigation District is not a valid, lawful, public corporation, having the power of eminent domain. Yet the district is denied the right to exercise the power of eminent domain in order to obtain water for the district because the majority says the taking is not for a public purpose.
Section 46-128 specifically provides that the use of all water required for the irrigation of lands of any district formed under this act is declared to be a public use, subject to the regulation and control of the state in the manner prescribed by law. While we recognize that the mere fact that the Legislature declares something to be a public purpose does not, in and of itself, foreclose any further examination, we believe that such declaration should not be lightly set aside, absent some violation of constitutional law.
Apparently, the basis for concluding that the action of this district must be set aside is because a single individual owning the majority of the land within this 270-acre district is the only individual benefiting from the water, and therefore the right of eminent domain cannot exist. No authority, however, is cited in support of that position, and, in fact, the number of individuals who may benefit from a particular public project is in no manner controlling. As noted by the U.S. Supreme Court in the case of Rindge Co. v. Los Angeles, 262 U.S. 700, 707, 43 S. Ct. 689, 67 L. Ed. 1186 (1923), “It is not essential that the entire community, nor even any considerable portion, should directly enjoy or participate in any improvement in order to constitute a public use.” And the Supreme Court of South Carolina, in Young v. Wiggins, 240 S.C. 426, 434, 126 S.E.2d 360, 364 (1962), noted:
It is of no legal significance that the organized district involves some twenty landowners. The constitutional prohibition applies to the same extent as though there were only three owners, of whom two favored the lake and *785one opposed it. The character of the use, whether by individuals or by members of the public, rather than the numbers of users, is controlling.
Further, in State v. Buck, 94 N. J. Super. 84, 88-89, 226 A.2d 840, 842 (1967), the New Jersey court said:
A use is not denominated public or private by simply relying upon the number of persons it serves. ... It has been stated that a use does not “fail to be public upon the ground that the immediate enjoyment of it is limited to a small group or even to a single person.” United States v. Boyle, 52 F. Supp. 906, 908 (N.D. Ohio 1943), affirmed sub nom. City of Cleveland v. United States, 323 U.S. 329, 65 S. Ct. 280, 89 L. Ed. 274 (1945). Accord, Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 161-162, 17 S. Ct. 56, 41 L. Ed. 369, 389-390 (1896).
The fact that in the instant case the irrigation district benefits only one person does not change the fact that the use of water for irrigation purposes in Nebraska by an irrigation district is a public use and that a duly created irrigation district has the lawful authority to condemn land in order to obtain water, even though only a single individual is benefited. That is the very holding in Vetter v. Broadhurst, 100 Neb. 356, 363, 160 N.W. 109, 112 (1916), wherein we said:
It may be thought to be rather an artificial distinction to say that an irrigation district, or a canal company created to furnish water to landowners for agricultural purposes for compensation, may exercise the right of eminent domain, but that a private owner of a single tract of land may not have such a privilege. But this difficulty rests on the nature of the matter. Such agencies are in a sense common carriers of water, and the right of control and of regulation of rates exists in the public, so that all courts would agree that such agencies are formed for a public purpose.
As noted in 26 Am. Jur. 2d Eminent Domain § 31 at 679 (1966):
It is a generally recognized principle that the public nature of a project, as warranting the exercise of eminent domain, cannot be made to depend on a numerical count *786of those to be served or the smallness or largeness of the community to be benefited. Therefore it is settled that a use may be public even though it will be enjoyed by a comparatively small number of people.
So adamantly do we, as a state, feel about the matter of water and its use, we have devoted four sections of our Constitution to the matter of water and the people’s right to divert it and use it. Article XV, § 4, of the Constitution of the State of Nebraska acknowledges that water for irrigation purposes is a natural want. And § 5 of article XV of the Constitution of the State of Nebraska declares that the water of every natural stream is dedicated to the people of the state for beneficial purposes.
What we are in effect saying by the majority opinion herein is that the right of this irrigation district to exercise its duly granted power of eminent domain must be denied because the driving force behind the creation of the district was too clever and followed the law to the letter. If the Legislature wishes to prohibit such an occurrence from arising in the future, it may make whatever constitutional, reasonable restrictions it wishes on the formation of a district. But the Legislature’s having described how that district should be created and, once created, what powers it should have, it should not be for this court to look behind those provisions and determine that the district is not entitled to the rights granted to it.
In my view, the decision of the district court was in error and should have been reversed.
Boslaugh, J., joins in this dissent.