sale.

the court, in all proceedings for the confirmation of bonds, to examine and determine, approve and conarm the proceedings for the organization of the district, as well as all other proceedings that may affect the legality and validity of the bonds and the order for their The prayer, therefore, was sufficient when read in connection with the petition, but to have repeated it in its literal terms in the notice would have been meaningless, and the only way to "state" it was to give its substance, as was done.

Of course, to a person entirely ignorant of the law authorizing and regulating the proceed ings, the notice may have been unintelligible, but it would have been equally so to such & person if the prayer of the petition had been us tull and specific as the allegations upon which it was founded, and had been copied verbatim in the notice.

A knowledge of the law is, however, imputed to every one interested in the proceeding, and it is decided, in Lent vs. Tillson, supra, that the notices required in cases of this character are to be construed and aided by reference to the statute.

sion that this decree, so far as it attempts to confirm the order of January 3, 1988, for the issuance of $800.000 of the bonds of the district, is erroneous and void for want of jurik diction. But we think there is no doubt that the Superior Court had jurisdiction, acquired by full compliance of the law, to examine into and confirm the order of July 31, 1889, for the issuance and sale of $400,000 of the bonds of the district, and that as to that order the decree may be affirmed if it, and the proceedings upon which it was founded, were regular and legal.

To sum up this branch of the case, we are told, with reference to the points presented by appellant, as follows:

The object of the act of March 16, 1889, is to provide a security for investors and promote the advantage of the irrigation districis by enabling the courts of the State to render a judgment binding on all the world as to the validity of bonds to be offered for sale by such districts.

To obtain such judgment the petition should set forth the particular orders for the issuance and sale of bonds, confirmation of which is desired. How fully the preliminary proceedings must be alleged is a question which does not arise here; but with respect to the organization of the district, it is only necessary that its due organization, and the election of its first board of directors, should be alleged in general terms. The prayer of the petition is sufficient if it prays for the examination, approval and confirmation of the proceedings aforesaid" for the issuance and sale of bonds of the district, and the notice is sufficient if it states the substance of such prayer and in other respects conforms to the statute. But the decree of the court cannot go beyond the orders for the issuance and sale of bonds which are alleged in the petition, and, in case the original petition is amended by setting out other orders for the issuance or sale of bonds, the court will not

So read and construed, we think that the notice in this case was in substantial compliance with the statute, and imparted sufficient notice to all the world that the directors of Modesto irrigation district No 1003 would, on the 24th day of August, 1889, submit the question of its corporate existence and the regularity of all its proceedings for the issuance and sale of its bonds, so far as the same were set out in its petition on file, to the Superior Court of Stanislaus county, and would ask the court to decree the regularity of all such proceedings; and we think that all persons interested in the district, being so notified of the time of the filing of the petition, and of the office in which it remained as a public record, were bound to take notice of its specific allega tions, and if they had any objection to the con-acquire jurisdiction to confirm such orders firmation of the orders and proceedings referred to in the prayer of the petition, that they were required to present their objections to the court at the time and place mentioned in the notice, or be forever precluded-they and their successors-from questioning the validity of the bonds issued in pursuance of such proceedings.

But could the court, without the publication of a new notice for the statutory period, acquire jurisdiction to examine and make a valid confirmation of proceedings not set out in the petition on file when the original notice was published, and to which it alone referred? Or, to state the question more precisely, could the court, by giving notice of a petition to confirm an order for the issue and sale of bonds to the amount of $400,000, acquire jurisdiction to confirm an order for the issuance of bonds to the amount of $800,000? We do not think it could.

The only answer which respondent makes upon this point to the contention of appellant, is that he had notice of the amended complaint, that he demurred and auswered to its aliegations, and therefore cannot be heard to object that other persons had no notice.

without the publication of a new notice of the amended petition.

A decree, however, confirming all the orders alleged in the original and amended petitions is not void for want of jurisdiction as to the orders set out in the original petition, merely because no new notice has been given of the filing of the amended petition. If there was due publication of sufficient notice of the original petition, the decree of the court confirming the orders for the issuance and sale of bonds therein specifically alleged, and of al the preliminary proceedings affecting their validity, including those for the organization

of the district and the election of its first board of directors, is within the jurisdiction of the court and can be assailed only by those who who have contested the proceeding, and by them only upon the ground of prejudicial errors affecting their substantial rights which have been duly excepted to.

In this case, accordingly, we hold that so much of the decree as confirms the order for the issuance of $800,000 of bonds of the dis

trict, dated January 3, 1888, is void, but that

it should be affirmed so far as it confirms the order of July 31, 1889, for the issuance and sale of $400,000 of the bonds of the district,

rfor Court committed error to the prejudice of this appellant.

Of course, in ordinary proceedings intended to fasten a liability upon particular defend-unless in conducting the proceeding the Supe ants, and in which each may be made indopendently liable, this would be a sufficient Answer. But here the proceeding is in rem, and its object is to establish the validity of the bonds as against the irrigation district and all persons interested in: the district. To be effective for the protection of investors or of advantage to the district, the judgment should bind all the world. A judgment binding upon the appellant alone must be in effect a nullity, leaving the district in precisely the same position it was in before the proceeding was comienced.

Such being the case, this appellant, ny landowner of the district, directly interested in the price to be realized upon a sale of its bonds, has a right to insist that the steps necessary to give the court jurisdiction to pronounce a binding decree shall be r gularly taken.

And we can see no escape from the conclu

The first point urged by the appellant upon this branch of the case is that the Superior Court had erred in confirming the proceedings of the Board of Supervisors in organizing the district, because said board by including therein the city of Modesto had violated the following provision of the Wright law: "Nor shall i any lands which will not in the judgment of soid board be benefited by irrigation by said system be included within such district." (Stats. 1887, p. 30, sec. 2.)

It appears from the record that the district ns originally organized contained about 108,000 acres of land, including the city of Modesto, a town covering about 2000 acres and having about 3000 inhabitants and about 600 dwelling-houses, besides, shops, stores, etc.

One proposition of the appellaut seems to be

that the mere fact of the corporate existence of a town or city, though situate in the midst of a district susceptible of irrigation by one system, necessarily deprives the Board of Supervisors of the county of the power to include any of the lands within the corporate limits of such city or town in an irrigation district. We say this seems to be a proposition of the appellant, because, although it is not expressly stated in terms, it appears to be necessary to Bustain his contention; for if it lies within the discretion of the board to include in an irrigation district any part of the lands of a town or elty upon the ground that in their judgment such part will be benefited by irrigation under the system proposed, and if the judgment of the board upon the question of benefits is conclusive of the fact as we shall she that it is -there is no ground upon which court can say that an order including all the lands of a eity or town in such district is void.

The idea of a city or town is of course associated with the existence of streets, to a greater or less extent lined with shops and stores, as well as of dwelling-houses, but it is also a uotorious fact that in many of the towns and cities of California there are gardens and orchards inside the corporate boundaries requiring irrigation. It is equally notorious that in many districts lying outside of the corporate limits of any city or town there are not only roads and highways, but dwelling-honses, onthouses, warehouses and shops. With respect to these things which determine the usefulness of irrigation there is only a difference of degree between town and county. The advantages of irrigation to a town like Riverside, in San Bernardino county, for instance, no one could deny, and the difference between such a town and those places where irrigation would be as manifestly out of place are not marked by any hard and fast line which would enable a court to lay down a rule of discrimination. The question whether in any particular case a town will, as a whole, be benefited directly by the application of water for irrigation is in its nature, and under existing conditions must remain, a question of tact to be decided by that tribunal to whose discretion it had been committed by the Legislature. It is very certain that the Legislature intended that cities and towns should in proper cases be included in irrigation districts, for the act expressly provides for the assess ment and taxation, according to their value, uot only of city and town lots, but also of the Improvements thereon. (Stats. 1887, p. 37, secs. 18 et seq.) And this section of the law was made an argument against its constitutionality in the case of Turlock Irrigation District vs. Williams, in which its constitutional ity was affirmed. (76 Cal. 360.) Such having been the intention of the Legislature, as is clearly apparent, and it being equally clear and notorious as matter of fact that there are cities and towns which not only may be benefited by irrigation, but actually have in profit able use extensive systems for irrigating land within their corporate limits, it cannot be denied that the Supervisors of Stanislaus county had the power to determine that the lands comprising the city of Modesto would be benefited by irrigation, and might be included in an irrigation district.

There was, it appears, a large majority of the electors of Modesto in favor of such inclusion. but the appellant and others owning buildings objected to being included in the district, on the ground that their lots covered with stores, shops and warehouses would not be benefited, If this objection was good ground for excluding the city from the district it is probable that no district could ever be successfully orgauized, for, in the nature of things, an irrigation district must cover an extensive tract of land, and no matter how purely rural and agricu! tural the community may be there must exist here and there within its limits a shop or ware house covering a limited extent of ground that can derive no direct benefit from the use of water for irrigation. Here, again, the difference between town and county is one of degree only, and a decision in the interest of shopowers in towns, that their lots cannot be included in an irrigation district, would necessarily cover the case of the owner of similar

It is nowbere contended by the appellant that in organizing irrigation districts it is the duty of the Supervisors to exclude, by de markation, every minute tract or parcel of land that happens to be covered by a building or other structure which units it for cultivation, and certainly the law could not be so construed without disregarding many of its express provisions, and at the same time rendering it practically inoperative.

We construe the law to mean that the board may include in the boundaries of the district all lands which, in their natural state, would be benefited by irrigation and are susceptible of irrigation by one system, regardless of the fact that buildings or other structures may have been erected here and there noon small lots, which are thereby rendered unfit for enltivation, at the same time that their value for other purposes may have been greatly enhanced.

So constrted, we can see no objection to the law upon Constitutional grounds or grounds of expediency.

As to the owners of such property, it seems reasonable to assume that they must particlpate, indirectly at least, in any benefits the district may derive from the successful inauguration of a system of irrigation; but aside from this, the law contains an express provision designed to secure to them a benefit exactly corresponding to any burden to which they may be subjected, and in that respect is far more equitable than many of the assessment laws which have been upheld here and elsewhere. The provision referred to is this: Every taxpayer of the district receives a portion of all the water distributed exactly equivalent to his propor tion of the total tax levied, and this water is his to use or to sell, as he may elect, so that if his lot is not fit for cultivation, he,nevertheless, gets a full equivalent for the tax assessed to him. (Stats. 1887, p. 34, Sec. 11.)

Upon these grounds we hold that a city or town, or a portion thereof, may, in a proper case, be included in an irrigation district.

As to what is or what is not a proper case for such inclusion, the decision of that question has been committed to the several Boards of Supervisors, whose discretion is not subject to the control of any court. Upon matters affecting their jurisdiction the orders of the Board of Supervisors may be open to review, but upon the question of fact as to what lands will or will not be benefited by irrigation their decision is final and conclusive. (See section 2 of the act, Statutes of 1887, p. 30.)

The formation of irrigation districts is accomplished by proceedings so closely analogous to those prescribed for the formation of swamp land reclamation districts that the decisions with respect to the latter are authority as to the former, and we cite as conclusive of this point People vs. Hagar, 52 Cal. 181; id., oG Cal. 60. Many other decisions to the same effect are cited in the briefs of counsel, but we deem it unnecessary to refer to them here.

The Superior Court di i not err, therefore, in refusing to allow the appellant to introduce evidence for the purpose of proving that his and other lots in the city of Modesto would be benefited by the proposed system or any system of irrigation. Nor did the court err in refusing the offer of appellant to prove that the Board of Supervisors wrongfully included the city of Modesto in the irrigation district, for

the purpose of carrying out the scheme of organization, against the wishes of the farmers outside the city.

To entitle the appellant to prove that the board and its members, well knowing that the lands of the city would not be benefited by irrigation, had, nevertheless, included them for the corrupt purpose suggested, and not in the exercise of their honest judgment and discretion, the facts constituting the fraud should have been fully pleaded in the answer, but no such facts as he offered to prove were pleaded.

It is, indeed, alleged that the order including the city was not made in the exercise of the judgment and discretion of the board, but contrary thereto. This allegation is part of a separate defense, in which it is coupled with other allegations, going to show that the lands of the city would not be benefited by irrigation, but it is nowhere alleged that the board,

lands of the district had been excluded with hat law constitute an investment of the out the consent of the owners of the lands re-ighest worth. In connection with the maining, the argument of appellant on this letter of C. P. Huntington it should be point would have had much force, and would at least have been deserving of serious consid-stated that that gentleman referred the .eration. But the fact being that at the time of question of the legal status of the bonds the exclusion of 28,000 acres from this district to the Law Department of the Southern it had no debt, and that after notice of the Pacific Company, and that after full inproceeding no objection was made to such ex-vestigation an answer was returned inclusion by any person, there is no basis for any dorsing the legality of the securities in the claim of injustice or violation of constitutional rights. The identity of the district was not most emphatic manner. destroyed by the exclusion of a part of its lands. Those who remain in the district will receive all the benefits of the expenditures of the proceeds of its bonds; they will not be compelled to pay for anything for the benefit of others. Nor is there anything in the law to compel the directors of the district, as constituted, to expend the whole amount of bonds authorized, if such amount shall not be needed. The provision of section 15 for the issuance of the bonds voted is merely directory, leaving it in

the discretion of the board to issue and sell such amount of bonds, within the amount voted, and at such times, as they may find expedient.

Upon a review of the whole case, we conclude that all the proceedings examined, approved and confirmed by the Superior Court were regular and valid, but that the court did not acquire jurisdiction to confirm the order (or resolution of January 3, 1888, for the issuance of $800,000 of the bonds of the district in this proceeding. The order, however, is not essential to the validity of the order for the issuance and sale of $400,000 of bonds, which depends upon and is sustained by the other proceedings for the organization of the

district, and the issuance of bonds.

It is therefore ordered that the judgment and decree of the Superior Court be and the same is hereby modified by striking out so much thereof as confirms said order of January 3, 1888, for the issuance of $800,000 of bonds of respondent, and as so modified the judgment and decree, as well as the order overruing appellant's motion for a new trial, are affirmed. McFarland, J., Paterson, J., and Sharpstein, J., concurred.

HIGH

INDORSEMENT.

WHAT C. P. HUNTINGTON THINKS

OF IRRIGATION.

C. P. HUNTINGTON.

A Clear and Pronounced Statement in
Favor of Irrigation.

SAN FRANCISCo, April 22.-To the Editor of the Chronicie SIR: Your esteemed favor of April 17th is before me. The object of your writing, as derived from your letter, is to obtain from me an expression, either in the form of a letter or an interview, as to the solvency of bonds of irrigation districts formed in conformity with the provisions of what is known as the Wright irrigation law.

law.

Prior to the receipt of your letter and the examination of the subject which it. suggested I had but a general and necessarily vague idea of the provisions of the I did, however, understand clearly the objects of this legislation from its inception. Arid lands lying under favoring climatic conditions become highly productive and valuable by the application of water through artificial channels; in fact, this method of supplying to the land the necessary moisture to produce vegetation is far more satisfactory than dependence upon the uncertainty of seasons. The factors upon which successful field culture depend are climate, fertility, intelligent cultivation and moisture. The three first of these exist throughout the country and are under the control largely of men. You find the climatic conditions-that is, the clemency of climate-favoring vegetation. You can find the fertility of soil, and to this apply intelligent cultivation; but when these have been found the fourth essential in unirrigated countries is lelt to the varying vicissitudes of seasons. This fourth being under control, the round is complete, and the profit of field culture may be as steady and unvarying as the accumulation of interest. Irrigation, however, demands the employment of capital and the appropriation and application of water. The divers ownerships of the land and the water may give rise to In response to requests from the confucting interests. The entire fertility CHRONICLE the following papers upon the of the land being dependent on the water, there appears to be an apprehension on subject of irrigation and irrigation bonds the part of those owning the land that the have been prepared by the gentlemen ownership of the water is an undue conwhose names are signed thereto. None trol and a menace to the rights and interstand higher in the business and profes-ests of the landowner. On the other hand, sional world than Messrs. Huntington, Rhodes, Newlands, Jarboe and Wright, their judgment upon the matters referred to will be accepted conclusive by thousands who have not had an opportunity to look into the subject thoroughly for themselves, and will go a long way toward convincing the business community of the entire country that the provisions of the Wright law are eminently just and beneficial and the | bonds in strict accordance with

Able Papers by Messrs. Rhodes,

and

as

Newlands, Wright and

Jarboe.

latterly the owners of irrigation systems, after having invested large sums of money in their construction and development, complain of a disposition on the part of the owners of the land to regulate by law the rate at which the irrigators are served with water in such a manner as to deny all reward to the capital invested.

Even a superficial examination of the Wright law proves that the object of the legislation was to combine the ownership. of the land with the ownership of the water. The theory of the law is very com prehensible and simple. It provides that)

an examination of a hydrographic system and equitable. Thus all conflict of inshall be made, surveys for ditches comterest between the owners of the water pleted and a district or area subject to necessary to fertilize arid lands and the the system proposed to be constructed owners of the lands irrigated is elimi shall be formed. When these surveys are nated. The cultivator of the soil is willfiled with the Board of Supervisors-the ing to own lands subject to such a syslocal legislative body for the county-an tem, and is relieved of all apprehension election shall be called, under the author of oppressive rates, while the capital emity of the Supervisors, of the qualified ployed in the development of the irrigaelectors in the district lying under the tion system was derived from the value of proposed ditch. When the necessary ma- the land itself. Thus when the bonds isjority in favor of the construction of the sued in the construction of the system are ditch is obtained, then bonds shall be redeemed, each owner will have a perfect 18sued, from the proceeds of the sale of ownership of the water in due proportion which the ditches shall be constructed to his holding. These provisions appear and the water introduced into the coun- to me to be wise, judicious and effective. try. The provision of the law makes The only remaining question that can be these bonds a lien upon the land bene raised in the premises relates to the validfited, and the money to meet the interest,ity of the act. This is a question for jupayments of the coupons attached to the dicial determination, and, as is well bonds and to create a sinking fund for the known to you and your readers, has been final redemption of the bonds themselves passed upon by the Supreme Court of the is collected by a process of taxation State in four decisions which affirm the simple and effective. Thus the value of constitutionality of the law and the validthe land subject to the system of irriga-ity of the bonds issued in conformity tion constructed by money obtained from therewith. the sale of the bonds is offered as security for the payment of the interest and the tinal redemption of the funded debt.

If the bonds constitute a lien upon the land which may be enforced, if they are a valid mortgage, the question of their solvency would depend upon the relation of the value of the land affected by them and the amount of the bonds. It can scarcely ever happen that the amount of bonds necessary to be issued for the purpose of constructing an irrigating canal would ever reach more than a bare moiety of the value of the land subject to the irrigation system constructed. My information is that in most cases from three to seven per cent of the value of the land only is required to construct the means of its irrigation. I mean by this the developed value after water is applied. The land subject to the lion of mortgage bonds has an equitable interest in the water to be supplied by the irrigation system. There is in its ultimate sense a unity of ownership as to both land and water, an ownership which is common to all the land, and the application of the water is placed under such regulation as to make its distribution fair

The existing status of the case, then, appears to be: First-Irrigation confers greatly enhanced value on the lands subject to it. Second-The irrigation bonds issued as relating to any particular district, if such bonds have been issued in strict conformity with the statutes of the State, are a first mortgage upon the lands lying subject to the irrigation system constructed from the proceeds of their sale. The bonds are therefore a mortgage upon valuable real property. Third-As a rule and perhaps in all cases, the value of the land greatly exceeds the amount of the mortgage to which it is subject, and it should therefore follow that bonds being a legal and valid first lien upon property greatly in excess of their face value and interest are perfectly solvent securities, equal to if not better than the mortgages upon real estate which are deemed by bankers and investors to be preferred security for the repayment of loans.

If these considerations are not conclusive the people and the judiciary of California are resting under a delusion. If the legislation already had does not establish a perfect security in the bondsto be issued, then the acts passed by the Legislature