from and after the making and entering of the order by the board of county commissioners organizing such district. a decree confirming said entire proceedings. | ganization of such district after two years Upon those questions see Fogg v. Perris Irr. Dist., 154 Cal. 209, 97 Pac. 316; People v. Linda Vista Irr. Dist., 128 Cal. 477, 61 Pac. 86. There is no question but that the petitioners had the right to ask for a confirmation of all of said proceedings. It is next contended that the appellant cannot question the organization of the district, first, by reason of the limitations found in section 2377, Rev. Codes, and, second, because of the first decree confirming the organization of the said district. Said section 2377 refers to the completion of the organization of the district, and among other things provides as follows: "No action shall be commenced or maintained, or defense made affecting the validity of such organization after two years from and after the making and entering of said order." The order referred to there is the order made by the board of county commissioners after an election is held for voting upon the organization of an irrigation district. It appears from the record that the order for the organization of said district was made on January 13, 1908, and appellant in this case did not interpose any defense until November 10, 1910, which was more than two years after the organization of said district. The limitation provided in that section was doubtless made to set at rest at an early date the existence of the district in view of its importance both to the inhabitants and the bondholders. In Fogg v. Perris Dist., supra, it was held that, when the organization of the district was complete, its boundaries and the land included is "notice to the inhabitants of the district and the world." The general doctrine is that no one but the state can challenge the existence of a public corporation. 28 Cyc. 172. A private party under our irrigation district law may appear in the confirmation proceedings and raise the question of due organization, if done within two years after the district is organized. If the district officers do not move to have confirmation within the two years, a private party has his remedy by a proper action to oust the pretended district and settle the question of the legal organization of such district. People v. Linda Vista, 128 Cal. 477, 61 Pac. 86. If this is not done and confirmation takes place, that ends the matter; all parties are bound by the decree of confirmation. In the Linda Vista Case it is held that the confirmation statute was enacted for the very object of binding the state, as well as all others, and an attempted quo warranto proceeding after the confirmation proceedings is a collateral attack upon the decree, and would not be permitted. It would appear from the provisions of said section 2377 above quoted that such a district may have the benefit of the statute of limitations, if no action is commenced or maintained or de * * The Supreme Court of California had occasion early in the history of the irrigation district law to consider the effect of a decree of confirmation. In Irr. Dist. v. Tregea, 88 Cal. 334, 26 Pac. 237, the court said: "The object of the act is to provide a security for investors, and promote the advantage of the irrigation districts 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." In Crall v. Irr. Dist., 87 Cal. 140, 26 Pac. 797, it is said: "It was doubtless for the purpose of settling all these matters in advance, and thereby making the bonds of irrigation districts more readily salable, and at better prices than they would otherwise command, that the Legislature passed the confirmation act, providing that the districts might, before offering any of their bonds for sale, have all questions affecting their validity judicially and finally determined." The doctrine of said California cases was fully approved by this court in the Brose Case, 11 Idaho, 474, 83 Pac. 499. Counsel for appellant contends that the filing of a petition for confirmation waives the statute of limitations. We cannot agree with that contention. The decree of confirmation stops the running of the statute and binds all parties. Simply because the petitioners prayed for a reconfirmation of the organization of the district, that fact alone would not reopen the confirmation already had of the organization of such district. The fact that the county commissioners did not declare the district organized on the day that they canvassed the vote, but laid it over until the regular meeting in the following January, is assigned as error. There is no merit in that assignment, for if the commissioners had neglected or refused to do their lawful duty in the premises, they could have been compelled to do it. It is not made to appear that said action of the board was to the prejudice of any of the rights of the appellant or the district. Some question is raised in regard to the jurisdiction of the court to exclude certain lands that were not benefited by the organization of said district. Certain cross-complainants made it appear that their lands were not benefited, and in the decree of confirmation the court found that such lands were not benefited and excluded them from the district. There was no error in that action of the court, for when it appears to the court that certain lands are not benefited that are contained in an irrigation district, the court has jurisdiction to exclude them before a confirmation of the organization of Some other errors are assigned which we have examined and do not consider it necessary to pass upon each of them separately. However, we find nothing in the assignments of error that would justify a reversal of the judgment. From the foregoing we conclude that the judgment of the district court must be affirmed, and it is so ordered. AILSHIE, P. J., and BUDGE, District Judge, concur. (19 Idaho, 483) PORTNEUF-MARSH VALLEY IRR. CO., (Supreme Court of Idaho. March 4, 1911. (Syllabus by the Court.) On ticular, isolated instruction, when read alone, [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 703-717; Dec. Dig. § 295.*} (Additional Syllabus by Editorial Staff.) On Petition for Rehearing. 4. EMINENT DOMAIN (§ 265*)-CONDEMNATION PROCEEDINGS-MEASURE OF DAMAGES-EXPENSE OF PROCEEDINGS. In condemnation proceedings the owner of the property taken should receive his just compensation clear of any expense of the proceed ings. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 690-693; Dec. Dig. 265.*] Appeal from District Court, Bannock 1. EMINENT DOMAIN (§ 131*)-CONDEMNATION County; Alfred Budge, Judge. PROCEEDINGS-MEASURE OF DAMAGES-IN STRUCTIONS. In a condemnation suit an instruction "that the measure of damages of defendant, the Portneuf Irrigating Company, would be the amount in dollars and cents, if any, saved to the plaintiff corporation in the construction or enlargement of the proposed canal by reason of the existence of the ditch of defendant, the Portneuf Irrigating Co., Limited, as constructed at the time of the issuance of summons, bearing in mind said defendant's continued future use of the proposed enlarged canal in common with that of the plaintiff corporation," does not correctly state the rule for estimating and fixing damages, and is in direct conflict with the further instruction that "The jury are instructed that they are not to measure the value of the right sought to be condemned from the defendant, the Portneuf Irrigating Co., Limited, by the necessity the plaintiff is under of obtaining that right, or the value it may have to the plaintiff alone, under the peculiar circumstances of this particular case. The reasonable market value of the property sought to be taken is the true measure of damages for the amount so taken." The latter instruction correctly states the law, and was a proper instruction for the jury. Condemnation proceedings by the Portneuf-Marsh Valley Irrigation Company, Limited, against the Portneuf Irrigating Company, Limited, and others. From the judgment, plaintiff appeals. Reversed and remanded. Standrod & Terrell and Edwin Snow, for appellant. Clark & Budge, for respondents. AILSHIE, J. This is an action for condemnation. The plaintiff sought by its action to condemn a right to enlarge the defendant's, the Portneuf Irrigating Company, Limited, canal to such capacity that it will carry the volume of water the Portneuf Irrigating Company desires to carry through the canal, and also the plaintiff's appropriation. The case was tried before the court and a jury, and judgment was entered, allowing the defendants' damages at $4,500. The plaintiff has appealed from the judgment awarding damages. [Ed. Note. For other cases, see Eminent Do- The only question presented on this appeal main, Cent. Dig. § 353; Dec. Dig. § 131.*] is the correctness of an instruction given by 2. EMINENT DOMAIN (§ 219*)—OBJECTION TO the court to the jury. The last sentence of QUESTION ASKED WITNESS-NECESSITY FOR the following instruction given by the court STATING EVIDENCE EXPECTED TO BE ELIC- is the part to which appellant took excep ITED. In a condemnation suit the plaintiff neces- tion, and now urges as ground for a reversal sarily admits that the taking of the property of the judgment: "The court instructs you, would be a damage to defendant in some amount, and with regard to a question based upon the theory entertained by the plaintiff as to the measure of damages, where the court sustains an objection to the question, it is not necessary that the plaintiff should state the evidence he expects to produce in answer to such questions, for the reason that it is apparent to any one that there would be some evidence as to damages, and that the plaintiff could have produced evidence fixing the damages in some amount. [Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 219.*] gentlemen of the jury, that the rule of damages in condemnation proceedings is that all damages, present and prospective, that are the natural or reasonable incident of the improvement made or the work to be constructed, should be ascertained; and you are instructed in the present case, so far as the ditch and right of way of the defendant, the Portneuf Irrigating Company, is concerned, you may in arriving at the damage, if any, to which said company is entitled, consider 3. TRIAL (§ 295*)-INSTRUCTIONS-CONSTRUC- the value of that portion of said defendant's TION AS A WHOLE. Where instructions when all read together may be harmonized and reconciled, the court will not reverse a judgment because some par ditch sought to be condemned, if any, subject to the right that the Portneuf Irrigating Company has to run its water, jointly with *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the plaintiff company, through said proposed stated by Lewis on Eminent Domain, vol. 2 canal. In other words, the court instructs (3d Ed.) § 706, as follows: "In estimating you, gentlemen of the jury, that the measure the value of property taken for public use, it of damages of the defendant, the Portneuf Irrigating Company, would be the amount in dollars and cents, if any, saved to the plaintiff corporation in the construction or enlargement of the proposed canal, by reason of the existence of the ditch of the defendant, the Portneuf Irrigating Company, Limited, as constructed at the time of the issuance of summons of this action, bearing in mind said defendant's continued future use of the proposed enlarged canal, in common with that of the plaintiff corporation." The bill of exceptions shows that upon the trial counsel for the plaintiff propounded the following question to a witness: "Supposing that this improvement were constructed in the manner testified to by you that it will be, what would be the difference in value of defendant's ditch and right of way before and after that improvement were constructed, assuming the values as of the date of January 29, 1909?" (The latter date being the date on which the summons was issued.) To this question counsel for the defendants objected. After the matter was argued, the court announced its ruling as follows: "I think I shall require the plaintiff company to pay for the benefit, if there is any benefit to them, by reason of the ditch being there or by reason of their taking and using it as it is now constructed. I think I will take that view of it. In other words, I think we will inquire into and learn what, if any, value the present ditch is to the company as it is now constructed. The objection may be sustained." To this counsel for the plaintiff took exception. The evidence was thereafter introduced under the view of the law announced by the court in his ruling. The provisions of the statute (section 5220, Rev. Codes) contemplate assessment of damages upon the basis of the market value of the property sought to be condemned, and as of the date of the issuance of the summons. Section 5221. That is apparently the general rule with reference to compensation. The rule is thus announced by the author of the text in Cyc. at page 757, vol. 15: "Compensation must be reckoned from the standpoint of what the landowner loses by having his property taken, not by the benefit which the property may be to the other party to the proceedings; therefore the value of a particular piece of land to a person or corporation exercising the right of eminent domain, or the necessities of that particular person or corporation to acquire that piece of property for the particular purpose, cannot be considered as an element of damage to the landowner. Neither can an amount that has at some time been expended upon the property in question, which has rendered it specially suitable for the use for which it is being condemned, be claimed by the landowner." is the market value of the property which is to be considered. The market value of property is the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who is under no necessity of having it. In estimating its value all the capabilities of the property, and all the uses to which it may be applied or for which it is adapted, are to be considered, and not merely the condition it is in at the time and the use to which it is then applied by the owner. It is not a question of the value of the property to the owner. Nor can the damages be enhanced by his unwillingness to sell, or be cause of any sentiment which he has for the property. On the other hand, the damages cannot be measured by the value of the property to the party condemning it, nor by its need of the particular property." It is often difficult to determine the market value of property, for the reason that there may be no general demand for the same, or it may be that the property is only valuable for a specified purpose, as was the case here, and a value can only be estimated upon the basis of the fitness of the property for the specific use on account of its formation, its location, or other specific, natural or artificial adaptability to the use for which it is sought. In a case, therefore, where no general market value can be ascertained, these latter elements must be taken into consideration and are proper subjects of inquiry, in arriving at the value of the property. "Generally speaking," said the Supreme Court of Iowa, in Ranck v. Cedar Rapids, 134 Iowa, 563, 111 N. W. 1027, "the true rule seems to be to permit the proof of all the varied elements of value; that is, all the facts which the owner would properly and naturally press upon the attention of a buyer to whom he is negotiating a sale, and all other facts which would naturally influence a person of ordinary prudence desiring to purchase. In this estimation, the owner is entitled to have the jury informed of all the capabilities of the property, as to the business or use, if any, to which it has been devoted, and of any and every use to which it may reasonably be adapted or applied. And this rule includes the adaptation and value of the property for any legitimate purpose or business, even though it has never been so used, and the owner has no present intention to devote it to such use." The trial court in this case appreciated the true rule for estimating damages, and so announced to the jury by instruction No. 12. That instruction is as follows: "The jury are instructed that they are not to measure the value of the right sought to be condemned from the defendant, the Portneuf Irrigating Company, Limited, by the neces right, or the value it may have to the plain- | error upon the instruction given by the court tiff alone, under the peculiar circumstances in enunciating a contrary rule. The contenof this particular case. The reasonable mar- tion made by appellant is correct upon theket value of the property sought to be taken ory, but is not applicable to the facts of the is the true measure of damages for the case under consideration. In a case where amount so taken." the court cannot tell whether the party askThe court correctly advised the jury as to ing the question has any evidence whatever the rule that should follow in estimating the to support the contention until he makes an damages that defendant would sustain. This, offer and tender to the court of that evidence, however, is in direct conflict with that por- it is proper to require the tender to be made, tion of instruction No. 7, heretofore set out, so that the trial court, and the appellate to which appellant objects. There the court court in case of appeal, may know the class told the jury "That the measure of damages and kind of evidence that the party expected of the defendant, the Portneuf Irrigating to elicit by the question and to rely on for a Company, would be the amount in dollars judgment. That is not the case here. It is and cents, if any, saved to the plaintiff cor- apparent at once that the respondent had poration in the construction or enlargement evidence, and could produce evidence, that of the proposed canal by reason of the ex- it would sustain damages on account of the istence of the ditch of defendant." This taking of its property. The appellant ad was in conflict with the true and correct rule mitted that fact, but was endeavoring apas announced by the court in the twelfth parently to limit the damages by proving the instruction, and would, of course, tend to value of the property at a specified time. confuse and mislead the jury; and it is It is not a question here as to whether there therefore impossible to tell whether they was any evidence that the respondent wou'd followed the correct instruction or the incor- be damaged, but the question is as to the rect instruction, as both instructions came method of ascertaining that damage and the from the court and were of equal authentic- character of evidence by which the dama ̋e ity, and presumably carried equal weight to should be measured, the appellant taking the the jury. For this reason it will be neres- position that the value of the property sary to direct a new trial, in order that the taken, to the extent of the property taken, objectionable instruction may be eliminated at the time of the taking was the measure from the instructions to the jury. This er- of the damage to be paid; while the reroneous instruction has most likely found spondent contended that the damage to be its way into the instructions in this case paid should be measured by the "amount in through inadvertence or oversight, but, how-dollars and cents, if any, saved to the plain. ever that may be, if the verdict and judgment founded on it were allowed to stard, it would establish a precedent that would mislead trial courts in other cases. It has been urged that under the rule announced by this court in State v. Neil, 13 Idaho, 539, 90 Pac. 860, 91 Pac. 318, People v. Bernard, 2 Idaho (Hasb.) 193, 10 Pac. 30, and Houser v. Austin, 2 Idaho (Hasb.) 204, 10 Pac. 37: "All instructions given in a case should be read and considered together and as a whole, and if when so considered they fairly present to the jury the law of the case, the judgment will not be reversed on account of some specific portion of the instructions, and, when taken alone, being incomplete and obscure." That position is entirely correct, but it will be observed that It applies only to instructions that can be reconciled one with the other when all are taken together. It is obvious, however, that such a rule cannot apply to two separate instructions on the same subject, where they are directly opposed to each other in announcing the rule of law applicable to the specific matter under consideration. In other words, where the instructions are in irreconcilable conflict, they cannot be construed together. It has been argued by counsel for respondent with great earnestness that, the appellant having failed to make an offer of its evidence as to the value of the property upon its theory of the law as to the rule for estimating damages, it cannot now predicate tiff corporation in the construction or enlargement of the proposed canal by reason of the existence of the ditch of the defendant." For the reasons herein before stated, we deem it necessary to reverse the judgment, and remand the cause for a new trial. Judg. ment is reversed, and the cause is remanded for a new trial. Costs awarded in favor of appellant. STEWART, C. J., concurs. On Petition for Rehearing. SULLIVAN, J. A petition for a rehearing has been filed in this case. It is contended that the court ought not to have awarded costs of the appeal to aprellant. Upon a re-examination of the matter. we are satisfied that the opinion should be modified in that respect. We think under our eminent domain statutes the owner should receive his just comrensation for the land taken, clear of any expense of the proceedings. See Lewis on Eminent Domain (2d Ed.) § 562; Petersburg v. Peterson. 14 N. D. 344, 103 N. W. 758: Matter of N. Y., etc., R. R. Co., 94 N. Y. 287. The original opinion will be modified to the extent of awarding all costs to the respondent. Costs of appeal are therefore awarded to the respondent. (19 Idaho, 465) McCORNICK v. SHAUGHNESSY et al. (Supreme Court of Idaho. March 4, 1911.) (Syllabus by the Court.) Shaughnessy died." The foregoing finding is followed by an order that the findings and judgment should be filed nunc pro tunc as of the date on which the case was submitted, November 8, 1909. So far as the record 1. APPEAL AND ERROR (§ 334*) — DEATH OF shows, no administrator has ever been apPARTY-SUBSTITUTION-AUTHORITY OF AT-pointed to represent the estate of M. ShaughTORNEY TERMINATION OF AGENCY. nessy, and no substitution whatever has ever been made in the case. Where a party to an action dies before an appeal is taken, the attorney who represented such party has no power or authority to prosecute an appeal until a substitution of a legal representative is had, and an appeal prosecuted in the name of such deceased party without substitution will be dismissed for want of jurisdiction in the appellate court to consider the same. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1851-1863; Dec. Dig. § 334.*] 2. ATTORNEY AND CLIENT (§ 76*)-TERMINATION OF RELATION-DEATH. Where a party to an action dies after judgment, the agency and authority of his attorney is at once terminated, and the attorney must obtain his employment and authority from a legal representative of the estate of such deceased person before he can prosecute an appeal in the case. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 120-131; Dec. Dig. § 76.* Appeal from District Court, Blaine County; Edward A. Walters, Judge. Action by W. S. McCornick against M. Shaughnessy and others. Judgment for plaintiff, and defendants appeal. Dismissed. Lynn F. Clinton, for appellants. Henderson, Pierce, Critchlow & Barrett and Sullivan & Sullivan, for respondent. AILSHIE, P. J. This action was instituted against "M. Shaughnessy, personally, and as executor and trustee under the will of Eudora Shaughnessy, deceased, Philip S. Shaughnessy, Walter D. Shaughnessy, and Eudora B. Shaughnessy Van Horn," as defendants. Judgment was rendered in favor of the plaintiff, and thereafter the attorneys, who had represented the defendants in the trial of the case, signed, served, and filed a notice of appeal in which they say that, "the defendant M. Shaughnessy, as executor and trustee under the will of Eudora Shaughnessy, Walter D. Shaughnessy, and Eudora B. Shaughnessy Van Horn, hereby appeal to the Supreme Court," etc., from the judgment. This notice of appeal was served and filed August 9. 1910. The findings of fact, conclusions of law, and judgment in the case were signed by the trial judge on the 22d day of July, 1910, and were ordered filed nunc pro tunc as of November 8, 1909, the date on which the case was finally submitted to the court for decision. In the findings is the following recital: "That heretofore but subsequent to the hearing upon this cause, and subsequent to the date upon which this cause was submitted to the court for adjudication, the defendant M. The first question with which we are confronted is the power or authority of the attorneys who represented the Shaughnessys on the trial of this case to take an appeal for or on behalf of M. Shaughnessy, personally, or "as executor or trustee for the estate of Eudora Shaughnessy, deceased." It is contended by respondent that upon the death of the client, M. Shaughnessy, the authority of the attorneys ceased, and that they had no further power or authority to appear or take any action in the case. Substantially the same question here presented confronted this court in Coffin v. Edgington, 2 Idaho, 627, 23 Pac. 80. In that case the plaintiffs obtained a judgment against several defendants, and prior to the prosecution of the appeal one of the defendants died. No substitution was made, and the estate of the deceased defendant was not represented in any way on the appeal. The court, after stating the facts, said: "The question presented is as follows: Has this court jurisdiction to hear and determine this appeal, in view of the fact that all of the proceedings taken and had on the appeal were subsequent to the death of said defendant Lewis? We think not." After quoting from several authorities, the court added: "It is evident, therefore, that no proceedings can be had in this court affecting the interests of the representatives of the deceased defendant. The next question is: Could an appeal be taken by the defendants in this case before a substitution was made? It would seem to be impossible. The judgment rendered against defendants was joint and several in its character. No decision of this court can be revdered affecting one of the defendants without affecting all. This fact makes them adverse parties, within the statute." The opinion in the Coffin-Edginton Case cites and quotes with approval from the following authorities: Judson v. Love, 35 Cal. 467; Sheldon v. Dalton, 57 Cal. 19; and Warren v. Eddy, 13 Abb. Prac. (N. Y.) 30. All of these cases are in point and hold to the same effect as the principal case. In Warren v. Eddy, the court, in speaking of the authority of the attorney to further act in the case after the death of his client, said: “At the time of the service of the notice, J. W. Culver could not act for a dead man, and he had no authority to act for or represent the estate. The order of the General Term for affirmance by default founded on such notice was therefore irregular, inasmuch as |