I dissent from the order denying a rehearing.
The special defense discussed in the last paragraph of the opinion of the court, I think, deserves more consideration than it has received. When a reclamation district includes in its plan of works, and appropriates and uses, a levee originally constructed by the owner of lands within the district, he has an undoubted claim against the district for the value of the levee so appropriated. This is conceded in the case of ReclamationDistrict v. Burgur, which is cited by the court as sufficient to support the decision here. But the only point there decided was that the commissioners appointed to assess benefits have no jurisdiction to determine the equities between the district and the owner of the levee so appropriated. Because they attempted to do so their assessment was declared invalid. The effect of this decision was to remit the owners of private levees taken over by reclamation districts to the courts for a remedy, and I know of no reason why the remedy may not be invoked by way of counterclaim in a suit to enforce the lien of an assessment. According to the statement of the case the value of the levee taken over by the district was due when it was taken, and before the commencement of this action. The district owed the defendant so much, and the defendant owed the district so much — they were counterclaims within the meaning of sections 438, 439 of the Code of Civil Procedure. If they were not the subject of setoff the reason for denying them that character must be sought elsewhere than in the Burgur case.