The record-union., 1891-03-30

III appears from the record that the dis
trict, as originally organized, contained
about los, GOO acres of land, including the
city OF Modesto, Il town covering about
1000 acres, and having about 5000 inhab-
itants and about 600 dwelling houses, be-
sides shops, stores, etc.
One proposition of the appellant seems
to be that the mere fact OF the corporate
existence of town or city, though stu
ate in the midst ofA district susceptible of
irrigation by one system, necessarily de-
prives 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 q proposition of the
appellant, because, although it is not ex
| pressly stated in terms, it appears
to he necessary to sustain his con-
tention; for, If it lies within the
| discretion of the board to include i'm an
! irrigation district any part of the lands of
town or city upon the ground that in
their Judgment such part will be bene-
hted by irrigation under the system pro,
! posed; and ii the Judgment of the board
upon the question of benefits is
conclusive Of the fact-as we shall
show that it is-there is no ground upon
| Which a court can say that an order in
Guiding all the lands of acity or town in
such district is void.
The idea OF u city or town is of course
W
TO greater or less extent lined with
shops and stores, as we'll as of dwelling
/ houses, but it is also q notorious fact that
in many of the towns and cities OF Cali
4 forilia there are gardens and orchards in
side the corporate boundaries requiring
! irrigation. It is equally notorious that
in many districts lying outside the cor
/ porate limits OF any city or town there
| are not only roads and highways but
dwelling houses, outhousas, warehouses
and shops. With respect to those things
! which determine the usefulness of irriga-
] ton there is only a difference Of degree
! between town and eoantry. The adyant-
ages of irrigation TO a town like River
side, i'll San Bernardino County, for in
| stance, no one could deny, and the differ
ences 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 court TO
| lay down rule OF discrimination. The
question whether in any particular case q
town will rs a whole be benefited directly
| by the application OF water for irrigation
| is in its nature ana; under existing condi-
/ tlons must remain q question Of fact to be
decided by that tribunal TO whose oiscre-
! ton it has been committed by the Legis-
lature. 1t is very certain that the Legis-
lature intended that cities and towns
should in proper cases be included in ir-
rigation districts, for the Act expressly
provides for the assessment and taxation
according to their value not only of city
| and town lots, but also the improvements
thereon. Stats 1887, p. 81, Sec. Is, ct seq
And this feature Of the law was made an
| argument against its conStitutionalty in
! the caseof Turlocll Irrigation District VS..
! Williams, in which its constitutional
lty was affirmed. (76 Cal. 360.)
| Such having been the intention of the
| ,ppiSlat11rp n & jc f.laoylv
! being equally clear and notorious as mat
ter OF fact that there are cities and towns
which not only may be benefited by ir-
| rigation, but actually have in profitable
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 dis
| trict
There was, it appearsia a large majority
OF the electors of Modesto in favor of such
] inclusion, but the appellant and others
owning buildings objected to being in
cluded 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 ex-
! Guiding the city from the district it is
| probable that no district could ever be
|
of things, an irrigation district must cover
an extensive tract of land. and no matter
| how purely rural and agricultural the
community may be there must exist here
and there within its limits a shop or
Warehouse covering limited extent of
ground that can derive no direct benefit
from the use of water for irrigation
Here, again, the difference between town
and country is one of degree only, and a
decision in the interest of shop-owners in
towns, that their lots cannot be included
in an irrigation district, would necessarily
cover the case of the owner of similar
property outside of q town.
1t is nowhere contended by the appel-
liant that in organizing irrigation districts
it is the duty of the Supervisors to eX-
clude by demarcation every minute tract
or parcel of land that happens to be COW
cred by building or other structure
which units it for cultivation, and GER
tainly the law could not be so construed
| without disregarding many of its express
provisions and at the same time render
ing it practically imperative.
We construe the law to mean that the
board may include in the boundaries of
the district all lands which in their nat
nral state would be benefited by irriga-
ton, and are susceptible of irrigation
by one system regardless of the
fact that buildings or other structures
| may have been erected here and there
upon small lots which are thereby rem
| dered unit for cultivation at the same
time that their value for other purposes
may have been greatly enhanced
So construed, we can see no objections
to the law upon constitutional grounds
or grounds of eXpediency.
As to owners of such property ii seems
| reasonable to assume that they must par
| ticipate, indirectly, at least, in any bene-
| fits the district may derive from the
successful Inauguration of system of
| irrigation; but aside from this, the law
contains an express provision designed
to secure to them a benefit exactly CORE
spending 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 re-
ferred to is this: Every taxpayer of the
district receives portion of all the water
distributed exactly equivalent to his pro-
portion of the total tax levied, and this
water is his to use, or to sell as he NAV
elect, SO that if his lot is not fit for cultiva-
ton he, nevertheless, gets full equiva-
! lent for the tax assessed to him. (Stats
| 1887, p. "a, Sec. II.
+ Upon these grounds we hold that city
or town or a portion thereof may, in
proper case, be included in an irrigation
district.
As to what is or is not proper case for
such inclusion the decision of that ques-
! ton 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 Sec.
2 of the Act, Statutes of 1887, p. 3O.)
1 VI -