Opinion of the Court-Ailshie, C. J.

he then be deemed to reserve any right to have another or later estimate made of the cost of constructing the works? We think not. He has contracted to make these payments with full knowledge of all these facts and circumstances, and in an action to foreclose the lien is estopped and precluded from questioning or denying that the price fixed by the contract represents the actual cost of reclamation and reasonable interest thereon, as contemplated by the Carey Act.

Suppose, on the other hand, that the estimated cost is largely exceeded by the actual cost of construction, as is said to often be the case. Could it for a moment be maintained that the construction company would be entitled, under authority of the national act, to a lien sufficient to cover that increased "actual cost," in the face of the contract which it had made?

In concluding our consideration of this part of the case, it may be pointed out that the amendment of 1896 to the federal Carey Act does not create the lien. It in effect ratifies the previous creation of the lien by the state statute (Act of 1895, Sess. Laws 1895, p. 227; sec. 1629, Rev. Codes), but contains a condition not contained in the provisions of our statute. However, since the cause of action arises under our statute we do not think it strictly necessary for the complaint to allege that the requirement of the federal statute has been complied with, that is to say, that the amount of the lien claimed represents "the actual cost and necessary expenses of reclamation," etc. But it occurs to us that it would certainly be good practice to insert such an allegation in any complaint for the foreclosure of a Carey Act lien.

3. In the light of the foregoing considerations there can be no doubt, after construing together the federal and state statutory provisions on the subject, that the purchaser of a water right under a Carey Act project may so contract as to eventually result in a lien being created upon all the property rights which he acquires.

4. Defendant demurred specially to paragraph 8 of the complaint, on the ground "that the same is ambiguous, unintelligible and uncertain, in this, that plaintiff alleges that

Points Decided.

plaintiff has performed all the conditions of the said contract required to be performed to entitle it to the relief sought in this action,' and that from said allegation it cannot be determined what conditions, if any, have been performed by plaintiff, sufficient to enable this defendant to answer said complaint." It appears by an examination of the complaint that this general allegation is preceded by specific allegations which recite certain acts of plaintiff company purported to have been done in compliance with the conditions specified in the contract. The complaint is not demurrable on this ground.

The judgment of the lower court is affirmed. Costs awarded in favor of respondent.

Sullivan, J., concurs.

(July 9, 1914.)

W. A. COUGHANOUR, Appellant, v. CITY OF PAYETTE, a Municipal Corporation, Respondent.

[142 Pac. 1076.]

MUNICIPAL LAW-IMPROVEMENT DISTRICT INJUNCTION-ORDINANCE OF

INTENTION-DESCRIPTION.

1. Under the provisions of sec. 2338, Rev. Codes, as amended by Sess. Laws 1911, p. 268, where the resolution or ordinance of intention describes the exterior boundaries of an improvement district proposed to be established, and also contains the number of the lots and blocks within such district that will be affected by such improvement, it is a sufficient compliance with the statute, since the streets and alleys can be readily ascertained and determined from said description.

2. The test as to whether the ordinance of intention complies with the law is whether it affords a proper opportunity to be heard by anyone who desires to protest against the establishment of an improvement district, and give reasonable notice of the intention of the city council to establish such district and make improvements therein.

Argument for Appellant.

3. Where the plaintiff as a property owner protests against the creation of a proposed improvement district, he thereby admits that he received notice of the intention to create said district.

4. Held, that Ordinance No. 246 substantially complies with the law in regard to what such an ordinance must contain.

5. Held, that the court did not err in dissolving the temporary injunction.

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

Action to restrain the city of Payette from proceeding to create an improvement district and the construction of sidewalks and curbing therein, in which a temporary restraining order was granted, and upon motion of the city was thereafter dissolved. Action of the court in dissolving such injunction affirmed.

Varian & Norris, for Appellant.

If there is any ambiguity in the terms of a notice, rendering its meaning doubtful, the construction must be most strongly against the party giving the notice. (Carpentier v. Thurston, 30 Cal. 123.)

A requirement that an ordinance shall specify the nature, character, locality and description of an improvement is mandatory. Particularity in this regard may be furnished. by reference to plans and specifications upon file, or reference may be made to some specific object or thing. (See 28 Cyc. 998 (11); McChesney v. City of Chicago, 171 Ill. 253, 49 N. E. 548; Hays v. City of Vincennes, 82 Ind. 178; Browne v. City of Boston, 166 Mass. 229, 44 N. E. 127.)

Failure to give notice as provided by charter or statute will invalidate proceedings for improvements and assessments to pay for the same. (28 Cyc. 979, 980; Barber Asphalt Paving Co. v. Edgerton, 125 Ind. 455, 25 N. E. 436; Kiphart v. Pittsburgh etc. Ry. Co., 7 Ind. App. 122, 34 N. E. 375; Mills v. Detroit, 95 Mich. 422, 54 N. W. 897; Eddy v. Omaha, 72 Neb. 550, 101 N. W. 25, 102 N. W. 70, 103 N. W. 692; Ackerman v. Nutley, 70 N. J. L. 438, 57 Atl. 150; In re Anderson,

Opinion of the Court-Sullivan, J.

60 N. Y. 457; Joyce v. Barron, 67 Ohio St. 264, 65 N. E. 1001; Bank of Columbia v. Portland, 41 Or. 1, 67 Pac. 1112.)

A. H. Bowen and Scatterday & Van Duyn, for Respondent.

The test as to whether the notice of intention complies with the law is whether it furnishes an effective opportunity to be heard and gives reasonable notice thereof. (Page & Jones, Taxation by Assessment, sec. 730; In re Common Council of City of Amsterdam, 126 N. Y. 158, 27 N. E. 272; Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. 617, 42 L. ed. 1047.)

SULLIVAN, J.-This action was brought to restrain the city of Payette, its officers and agents, from constructing sidewalks and curbs as proposed in Ordinances Nos. 240 and 246, passed by said city. On filing the complaint the court granted a temporary restraining order and thereafter the city moved to have said order set aside, and after a hearing the motion was granted and the temporary injunction dissolved. This appeal is from the order dissolving said injunction.

The main contention of appellant is that the ordinance of intention did not state the names of the streets and alleys to be improved, and counsel contend that under sec. 2238, as amended by chap. 81, Sess. Laws 1911, p. 268, it was necessary to state in the ordinance of intention the names of the streets, alleys, etc., that were intended to be improved. Said section provides, among other things, as follows:

"4. The City Council or Trustees shall, before or during the grading, paving, or other improvement of any street or alley, the cost of which is to be levied and assessed upon the property benefited, first pass at a regular or special meeting, a resolution or ordinance declaring its intention to make such improvement, and stating in such resolution or ordinance the name of the street or alley to be improved, the points between which said improvement is to be made, the general character of the proposed improvement, and the estimate of the cost of the same, and that the cost of the same is to be assessed against the property abutting, fronting,

Opinion of the Court-Sullivan, J.

contiguous or tributary (and included in the assessment district herein provided) on such street proposed to be improved, and shall fix the time, not less than ten (10) days in which protests against said proposed improvement may be filed in the office of the City clerk."

Said ordinance of intention is in part as follows:

"Be it ordained by the Mayor and Council of the City of Payette, Idaho:

"Section 1. That notice is hereby given that it is the intention of the City of Payette, Idaho, by its Mayor and Council to create a local improvement district to be known as Local Sidewalk and Curbing Improvement District No. 1, of the City of Payette, for the purpose of building sidewalks and placing curbing within the territory embraced within said District, to wit:

"Beginning at the intersection of 3rd Ave. A and Sixth St., thence east along the center line of 3rd Ave. S. 1250 feet," etc.

The ordinance then prescribes the exterior boundaries of said improvement district and thereafter proceeds to give the number of blocks and all lots within said improvement district to be affected by said improvements.

The question then directly presented is whether the ordinance is a substantial compliance with that provision of the statute above quoted which declares that the resolution or ordinance shall give the names of the streets and alleys to be improved.

The ordinance in question gave the exterior boundaries of the district by metes and bounds along certain streets and alleys and in addition thereto gave the numbers of each block and lot to be affected by said improvement. The lot owner certainly could not be misled by not having the streets and alleys named, as the same thing was substantially accomplished by giving the exterior boundaries of the district, and the numbers of the lots and blocks within the district. Said Ordinance No. 240 conforms to the law in regard to the beginning of sidewalking and curbing and the ending of the same upon each street, since it asserts that the sidewalk and