Woldson

Appellant, a citizen of Washington, sued in the court below for damages for alleged misfeasance in office of appellees Bauman and Copeland as commissioners of Drainage *623 District No. 1 of Boundary County, Idaho. 1 The appeal is from a judgment denying recovery.

The drainage district was organized in 1920. A contract was then let and construction work followed. In 1924 the state court in which the organization proceedings had been conducted made an order requiring the district board, within a reasonable time, to improve the drainage system so as effectively to drain certain lands in what is known as the Mirror Lake area, theretofore unreclaimed. There was a supplementary order of the same character made in 1925 requiring the cleaning of certain ditches and the construction of necessary laterals. It was claimed that the district did not comply with these orders; and in 1927 and 1928 there were further proceedings in the state court, as a result of which the court directed the cleaning and deepening of the ditches and the installation of a booster pump. Complainant in the present suit alleges that these orders have never been fully complied with and that, a portion of the land in…

I concur in the result for the following reasons: (1) Under the Idaho statutes and the orders of the state court, a duty was imposed upon the office of commissioners of the drainage district; (2) that duty exists regardless of who the commissioners may be; (3) for violation thereof, appellant has a remedy, whether the violation is wilful or not; (4) since the state court first took jurisdiction, and since the record discloses a continuous proceeding there, I believe the state court has ample power to enforce appellant’s rights; and (5) this is especially true here because the only way appellees could extinguish the duty placed on them is by following the statutes and seeking modification of the drainage plan in the state court. Certainly, appellant who now has the benefit of the right created by the court orders should not be compelled to have the plan modified so as to dispose of that right.