Argument for Appellants.

4. A grant to a canal company of a right of way or easement for its ditches in the streets of a city is subject to the right of the city to thereafter regulate the manner of the exercise of such easement, or to change the grade of the streets in such a way as to require a corresponding change in the conduit for the delivery of water; and in exercising its right to grade its streets, the city may, if it becomes necessary so to do, remove such ditches and require the reconstruction of the company's system by a pipe-line beneath the surface.

5. An irrigation district is a public quasi corporation organized to conduct business for the private benefit of the owners of lands within its limits, and holds its property in a proprietary rather than in a governmental capacity, so that it must assume and bear the burdens of proprietary ownership.

6. Under sec. 2419, Rev. Codes, which authorizes the directors of irrigation districts to fix rates of tolls and charges for water against persons using its canals, or to levy assessments for the purpose of defraying expenses of the operation, "repair and improvement" of such portion of its canal and works as are complete and in use, the laying of a pipe-line necessitated by the lawful removal of a ditch by municipal authorities is a repair or improvement, the funds for defraying which may be included in a maintenance assessment or in increased toll rates charged for the delivery of water, and is not new construction which must be defrayed by a special assessment under sec. 2391, or bond issue under sec. 2396, which require the assent of the voters of the district.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Application for writ of mandate. Judgment of dismissal was entered after sustaining a demurrer to the complaint, and the plaintiffs appealed. Reversed.

G. W. Lamson, for Appellants.

The water users on the city lots acquired vested water rights, and it is the duty of the defendant corporation to deliver water. (Wilterding v. Green, 4 Ida. 773, 45 Pac. 134: People ex rel. Standart v. Farmers' High-Line Canal and Reservoir Co., 25 Colo. 202, 54 Pac. 626.)

It is evident that the city of Nampa acted within its rights. "A licensee of an easement upon a street or highway for a public use takes such easement subject to the continuing

Argument for Respondent.

power of the corporation to grade and improve its highways. (3 Abbott, p. 2110, and authorities cited.)

The water users cannot be compelled to pay for any part of the district water system, and the laterals destroyed are a part of the system. (Bothwell v. Consumers Co., Ltd., 13 Ida. 568, 92 Pac. 533, 24 L. R. A., N. S., 485; Wilterding v. Green, 4 Ida. 773, 45 Pac. 134.)

The authorities adjudicate cases wherein the question lies exclusively between the licensor and the licensee of the easement. (Allen v. San Jose, 92 Cal. 138, 28 Pac. 215, 15 L. R. A. 93; Barrows v. Fox, 98 Cal. 67, 32 Pac. 811; Gregory v. Nelson, 41 Cal. 278.) The case at bar is one in which the water users, among whom are some of the plaintiffs, are injured, and they have no interest whatever in the easement or the controversy as to what changes have been made in the lateral ditches. By usage for more than ten years, these parties have acquired vested rights, which in equity should be protected. There is every presumption that the defendant contemplated just such changes as have taken place and contracted accordingly.

McElroy & Winstead, for Respondent.

The construction by respondent in the streets of Nampa of an irrigation system, consisting of "proper tiling or cast pipe," is the original construction of irrigation works not heretofore in existence and different in character from that in which plaintiffs secured an easement for the carriage of their water. (Allen v. San Jose Land & Water Co., 92 Cal. 138, 28 Pac. 215, 15 L. R. A. 93.)

"Ditches and flumes are the usual and ordinary means of diverting water in this state, and parties who have made. their appropriations by such means cannot be compelled to substitute iron pipes, though they may be compelled to keep their ditches and flumes in good repair so as to prevent any unnecessary waste." (Barrows v. Fox, 98 Cal. 66, 32 Pac. 811: Winslow v. City of Vallejo, 148 Cal. 723, 113 Am. St. 349, 84 Pac. 191, 5 L. R. A., N. S., 851, 7 Ann. Cas. 851.)

Opinion of the Court-MacLane, District Judge.

The law clearly provides for the establishment of uniform charges for water, and "an irrigation company appropriating water for sale has no authority to make a distinction between its consumers. (Boise City Irr. & Land Co. v. Clark, 131 Fed. 415, 65 C. C. A. 399.)

Rice, Thompson & Buckner, Amici Curiae.

Under the pleading in this case, the Nampa-Meridian Irrigation District had a right to said easement and right of way that the city of Nampa must respect. Said lateral constructed on said easement and right of way was the property of the irrigation district, and said city had no more right to destroy that lateral than if it had been constructed on an easement and right of way through lands owned by private parties. The lateral had been constructed and was being used for a lawful purpose. The city had no authority to declare the same a nuisance and destroy it. A lateral to carry water for irrigation purposes is not a nuisance per se. (Melker v. City of New York, 190 N. Y. 481, 83 N. E. 565, 16 L. R. A., N. S., 621, 13 Ann. Cas. 544; 29 Cyc. 1153.)

Since such a lateral is not a nuisance per se, before it can be lawfully destroyed, it is absolutely necessary that an action be brought and that it be judicially determined a nuisance. Until it has been so declared a nuisance by judicial determination, no one has authority to destroy the same. (Yates v. City of Milwaukee, 77 U. S. 497, 19 L. ed. 984; City of Denver v. Mullen, 7 Colo. 345, 3 Pac. 693.)

MACLANE, District Judge.-In 1895 the village, now city, of Nampa granted the Boise City Irrigation & Land Co. an easement and right of way for the construction of lateral ditches to convey water for irrigation purposes upon certain of its streets. The company accepted this grant, constructed its ditches and supplied water to lot owners in the village, and its rights and franchises, whatever they were, were subsequently acquired by the Nampa & Meridian Irrigation District, the defendant in this action. In 1909, the city of

Opinion of the Court-MacLane, District Judge.

Nampa established a grade for the streets along which these ditches ran, lower than the existing grade of the ditches, and constructed a new roadway according to the grade thus established. In doing this work, it tore out and destroyed the defendant's ditches, and has served notice upon the defendant requiring it to reconstruct the ditches beneath the surface of the streets by means of tiling or cast pipe. The defendant failed to comply with this notice, and this action is brought by the city and certain lot owners who were formerly served by the defendant's ditches, to compel the defendant to install a pipe system along the streets and to deliver water to those entitled thereto. A demurrer to a complaint alleging the foregoing facts was sustained by the trial court and a judgment of dismissal entered, from which the plaintiffs have appealed.

The complaint alleges that the lot owners have been supplied with water from the defendant's system for several years preceding the commencement of the action; that their lands have been improved by the water so supplied, and that such lands cannot be irrigated from any other system. Under these facts the lot owners have become entitled to the use of water from the defendant's system and the defendant must, in the first instance, construct its system within its franchise limits at its own expense. It cannot compel the user of water to pay for any part of the system. (Pocatello Water Co. v. Standley, 7 Ida. 155, 61 Pac. 518.) The fact that the delivery of water has been made more expensive or more burdensome to the defendant is not a sufficient reason for refusing to deliver the water. (Niday v. Barker, 16 Ida. 73, 101 Pac. 254.)

These lot owners are therefore entitled to the water which they have demanded, unless the acts of the city constitute a justification or excuse for the failure of the defendant to deliver it. There is no contention that they in any way participated in the destruction of the defendant's ditches by the city, and it seems that their right to the water could not be defeated by any act of the city, even if wrongful, in which they did not join, regardless of whether or not the defendant

Opinion of the Court-MacLane, District Judge.

would have a remedy over against the city for the destruction of its property. That is a question which would seem to concern only the city and the defendant.

However that may be, the principal question argued, and which it is desired to have determined, is whether the duty of reconstruction rests upon the city or upon the defendant. By sec. 2238, Rev. Codes, subd. 3, cities and villages are authorized to "establish, lay out, alter, open any streets or alleys, and improve, repair, light, grade or sprinkle, drain the same and remove any and all obstructions therefrom, establish grades and construct bridges, cross-walks, culverts and sewers thereon, and repair and maintain the same; and defray the expenses of the same out of the general fund of such city or village. . . . (or) by a special assessment in accordance with the provisions of the fifth subdivision of this section." The subdivision referred to provides the method of levying such special assessment.

Sec. 2315, as amended by Laws of 1909, p. 174, confers authority to issue bonds to "provide for the grading, paving. construction and laying out of streets and alleys." Under these sections cities and villages have ample power to establish the grade of their streets, and to reconstruct the roadbed of the streets on the grade thus established, and it is generally held that for damages incidentally resulting to abutting property from the lawful exercise of the power so conferred, they are not liable to the owner in the absence of a statute expressly imposing such liability. (28 Cyc., Munieipal Corporations, 1069; Smith v. City of Washington, 61 U. S. 135, 15 L. ed. 858; City of Denver v. Vernia, 8 Colo. 399, 8 Pac. 656; Roberts v. City of Chicago, 26 Ill. 249; City of Pontiac v. Carter, 32 Mich. 164; Shattner v. Kansas City, 53 Mo. 162.)

It is contended here that as the plaintiff city granted the defendant's predecessor in interest, the Boise City Irrigation & Land Co., an easement and right of way for the construetion of these ditches, which was accepted by that company by the construction of its ditches and the use and operation of the same, that the defendant, on succeeding to the interest