dissenting:
I dissent.
The sole basis of the majority opinion in this case rests on an implied power to make a reservation of rock, gravel, sand, and earth by the county in selling its tax deed land. It seems to the writer that this doctrine of implied power should only be used after the necessity is shown, and the court be strict in requiring the county to show necessity. The leading case on *498this doctrine is Hersey v. Neilson, 47 Mont. 132, 131 P. 30, where it is said it is a well-established law that a county is an involuntary corporation for governmental purposes, and is in no sense a business corporation; that the powers and obligations of the county are such only as the law prescribes or as arise by necessary implication therefrom. And again, in Independent Publishing Co. v. Lewis and Clark County, 30 Mont. 83, 75 P. 860, it is quasi corporate in character but has only such powers as are expressly provided by law or are necessarily implied by those expressed. There is no necessity for Lewis and Clark County to own this particular gravel pit, together with all the rock, gravel, sand, and earth that might be on the forty-acre tract sold, and therefore there can be no implied power on the county’s part to reserve this. Further the reservation, which includes earth, sand, gravel, and rock, would seem to the writer to include everything that is sold. After all, if you have a right to remove all of that, what is left except the air?
The Legislature has seen fit to grant by express statement in section 84-4191, R.C.M.1947, the rights of the county to make reservations, and that includes only a “six and one-fourth percent interest in the oil, gas, other hydrocarbons and minerals produced and saved from said land” and if the Legislature wants to go further than this, that is their privilege, but until they do I don’t think this court should take it upon itself to enlarge the statutory powers of the county to reserve. If it does the fertile minds of county commissioners and county attorneys will produce no end of reservations that they can think of. A few come to the writer’s mind such as: (1) easements for right of way for road purposes; (2) rock, gravel, sand, and earth, as they have done here; (3) all the oil under a piece of land (since oil can be said to be necessary to road building); (4) all timber (since wood can be said to be necessary to building bridges); (5) easements for ditches to drain roads (since these can be said to be a necessity in the road-building program; and ad infinitum.
*499The majority decision in this case will require a decision on all the rest of the reservations which will come in the future which I have mentioned, and doubtless many more, and no reservation is really necessary to road-building.
The purchaser of tax deed land is entitled to know what he gets, and I do not think the Bod and Gun Club in this case knows what it has since all of this earth is removable by the county at any time, as well as the sand and gravel underneath, and this situation prevailing throughout the State of Montana is bound to lower the price of tax deed lands to the counties, as well as add confusion among attorneys trying to decide whether or not the myriad reservations to come will be thought by this court to come under the doctrine of implied powers because they are all “necessary.”