DISSENTING OPINION.
ALLEN, J.I concurred in the opinion written by my Brother Nortoni herein, but upon motion for rehearing and a further consideration of the' matter I have concluded to withdraw such concurrence for reasons which I shall briefly indicate.
It appears that the monies laid out by plaintiff, and his assignors went to make up the total sum of $4253.42 expended by certain landowners in the drainage district in question, for the purpose of making levee improvements at what is termed the “McGuire Fill” and the “Voss Dike.” These are spoken of in the majority opinion as repairs to the old levee maintained by the Egyptian Levee Company, which became defunct, and they were of that general nature, but in fact it appears that at the McGuire Fill a new strip of right of way was purchased, the title being taken in a committee appointed by those contributing the funds, upon which right of way, one hundred feet wide and perhaps a quarter of a mile in length, a new piece of levee was constructed, the ends thereof being made to *647connect with the old levee so as to form a continuous embankment. And in doing the work at the Yoss Dike it appears that the new dike or embankment was built, not on the right of way of the Egyptian Levee Com.pany, which was then in the bed of the river, the latter having forced its way behind the oíd dike, but upon land owned by plaintiff Voss, and more than one hundred feet from the river bank. The ends of the new dike thus constructed were evidently made to connect with the old dike or levee, as in the case of the McGuire Fill.
In other words, as I understand the evidence contained in the record before us, monies laid out by plaintiff and his assignors, and certain other landowners as well, were expended, through a committee in constructing these two embankments, one upon a right of way purchased for that purpose and the other upon land of plaintiff Voss, the newly constructed work in each instance being entirely off of the right of way of the old levee company but made to connect with the old levee. The record discloses that $3241.48 was expended at the McGuire Fill, of which $100 was contributed by an attorney, the remainder, to-wit, $3141.48, being advanced by plaintiff and his assignors and other owners of land in the district, each contributing on the basis of $1.00 per acre of land owned; and it appears that $1111.94 was expended on the Voss Dike, one-half of which was contributed by plaintiff. The total acreage in- the district is said to be approximately eleven thousand, five hundred acres. And it therefore appears that the owners of much less than one-half of the land in the district contributed to the making of these improvements. The monies were raised by subscriptions among the landowners, and plaintiff’s evidence goes to show that this was done in contemplation of the organization o.f a new levee district which was expected to make reimbursement therefor.
In view of the fact that the work done at the McGuire Fill was on a new piece of right of way purchased for that purpose, and • that at the Voss Dike *648upon land of plaintiff Yoss, and the fact that the defendant, the new drainage district subsequently incorporated, took over and utilized for its purposes, for the benefit of all of the landowners of the district, both .of these embankments, strengthened and enlarged them and incorporated them into its improved levee, the case appears to me to be one falling within the purview of the statute under which defendant was organized, and upon which plaintiff here in part relies, viz., section 5707, Revised Statutes 1909, quoted in the majority opinion. It appears that plaintiff and his assignors had such interest in work constructed at the McGuire Fill and at the Yoss Dike, “by virtue of having contributed money, material and labor” in the. construction .thereof, and by reason of their title to the two pieces of right of way utilized, as to bring them within the contemplation of the statute, entitling them to be reimbursed to the extent of the benefits conferred upon the new levee district.
In the majority opinion it is said that this case is distinguishable from that of Winkelman v. Des Moines & Mississippi Levee District No. 1, 171 Mo. App. 49, 153 S. W. 539, and Wilson v. King’s Lake Drainage & Levee District, 176 Mo. App. 470, 158 S. W. 931; s. c. 257 Mo. 266, 165 S. W. 734, in that in each of the cases méntioned a valid claim existed against the old or prior company, contracted by it, and which was held to continue as a liability of the new company subsequently organized. But it seems to me that the distinction made is not of controlling importance, and that this case falls within the broad principle upon which the Wilson case, supra, proceeds.
Irrespective of the statute it seems that liability should here be cast upon the defendant upon a contract implied by law to reimburse plaintiff and his assignors to the extent of the benefits received by defendant by virtue of its appropriation and use of these two distinct and separate embankments constructed off of the right of way of the old levee to which defendant succeeded.
*649The. action is one in assumpsit, equitable in character, and which in general lies whenever the defendant has received money, or its equivalent, which in equity and good conscience should he repaid to plaintiff. [Henderson v. Koenig, 192 Mo. l. c. 709, 91 S. W. 88; Stout v. Hardware Co., 132 Mo. App. l. c. 529, 110 S. W. 619.] It appears that defendant, in reconstructing or improving the entire levee, did not, at,.the McGuire Fill or the Yoss Dike, follow the course of the old levee, hut took possession of the work constructed by plaintiff and other landowners at these points, though not upon defendant’s right of way, incorporated them into its levee, and utilized them for the benefit of the drainage district as a whole. Such being the case, I think that the law will imply a contract to reimburse plaintiff and other contributing -landowners to the extent of the benefits thus received by defendant; and plaintiff’s evidence tends to show that the embankments in question were reasonably worth to defendant the amounts expended thereon.
It does not appear that the old Egyptian Levee Company had ceased to exist, though it does appear that it was lying dormant. But with this, I take ifc, we are not here particularly concerned. In Wilson v. Drainage District, 257 Mo. l. c. 288, it is said: “Moreover though the prior .drainage district were not a corporation either ele jure or de facto, it would seem that defendant should pay for the benefits thus received which inured to the lands and inhabitants its charter was issued to conserve. No one can doubt that defendant as an incorporated drainage and levee district under our statute possesses the power to contract a levee and it would seem that if it utilized a portion of an old one in the construction of the new that such would be moving along the lines of the very power conferred.” This is the language of my Brother Nortoni in the opinion' of this court adopted by the Supreme Court in the Wilson ease, supra. And the opinion as adopted holds that the defendant therein acted within the power conferred upon it in incorporating a certain piece of *650levee into the new levee which it had constructed; and that as it was acting within the powers conferred upon it, as a municipal corporation, it was estopped to deny the validity of the plaintiff’s claim for work done in constructing the portion of the levee thus appropriated. In this connection the following language is used; viz: “It seems entirely clear that defendant having acted within its power in using the old levee and incorporating it into a new one, is estopped from denying reasonable compensation for the value of the services rendered by those constructing it and who have not been compensated. ’ ’
While the levee taken and appropriated in that case was one which had been constructed under contract with the old levee company, the principle asserted and upon which the case proceeds seems to apply with equal force to the facts here involved.
* Were the case indeed one where plaintiff 'and his assignors had voluntarily made certain repairs upon the old levee of the Egyptian Levee Company, situated upon its right of way, while that company lay dormant, the case would present quite a different aspect. But the facts are, as I gather them from the record, that plaintiff and other landowners constructed two distinct embankments entirely off of the. old right of way, at points where the river had broken through the old levee and encroached upon the adjoining land. Had the defendant, upon its organization, reconstructed the old levee at these points, upon the old right of way, were that found feasible, plaintiff and his assignors, who had built these embankments off of such right of' way, would have had no claim for the monies thus expended. But since the defendant has seen fit to depart from its right of way and utilize for its purposes the embankments thus constructed, it may, I think, under the doctrine announced in the Wilson case, properly be held to be estopped to deny compensation to those who constructed such improvements, to the extent of the benefit which it received thereby.
*651It is suggested that plaintiff and his assignors contributed to the building of these improvements for their own protection, and that they now have and enjoy the benefit thereof. While it is doubtless true that the primary object was to protect their own lands, yet when the improvements thus made are incorporated into the improved levee maintained by the new levee district, and are made to serve as a protection to all of the lands therein, it would seem but just and equitable to require that the new organization malic reimbursement therefor, in order that the cost of such construction may fall ratably upon all included within the district.
I therefore dissent from the result reached in the majority opinion, and as I deem the decision of my associates herein to be contrary to the decision of the Supreme Court in Wilson v. King’s Lake Drainage & Levee District, 257 Mo. 266, 165 S. W. 734, I request that the cause be certified to the Supreme Court for final determination.