*1 remove the com- in order to mining properties on take it be pressor necessary would building out one building disputed end of but replaced damage end could without particular be realty. burden in error lan- general show that the was included compressor the lease. this it guage paragraph eight of In failed. trial resolved the issues in favor There error. ample competent defendant evidence support finding, court’s and under thereon well-recognized rule, finding such and judgment will on review. not be disturbed affirmed, and
Judgment supersedeas .is heretofore granted will disregarded. Mr. Justice
Me. Chief Justice Knous Burke, concur. Holland 14,031. No.
Beaty County v. Board Commissioners of Otero County.
(73 982) [2d] P.
Decided November 1937. *2 Mr. for plaintiff Perry E. C. Mr. E. Williams, Glenn, in error. for defendant in error. E. Sabin, Charles
En Banc. the court. opinion delivered
Mr. Knous relatively lower court here appear The parties defendant. plaintiff refer them as will we are stipulated. facts inclusive, period
During years 1927 to land owned acres of suit, plaintiff owned the canal lying county, Colorado, Otero Company, Consolidated Canal Reorganized Catlin of this For company. a mutual ditch ditch 477.44 owned of this stock she ownership of the company. By virtue flow- part rata pro to draw her entitled any given time, canal at in the main company’s ing In the apportionment all stockholders. providing the bylaws of water between the stockholders, rep- share of stock canal that one company contemplated required irrigate resented amount of water mentioned a part years land. During by reason of have plaintiff’s not been cultiva- other condition with seepage interfering some ex- circumstance, tion. and her normal Because of this *3 more had share the times plaintiff cess ownership, of irrigated than shares of water stock she owned acres throughout varied the land, cultivated which excess and acreage the extent of waste years to of the fluctuating has annually land. a result plaintiff As of these factors than water per the use of more acre enjoyed used and of land. only one share having persons it was permitted the When she was excess using rata benefit of pro to flow in the ditch and inured to the the each of other ditch. During stockholders the years irrigated acreage plaintiff said the the the equal lands an amount to irrigated assessed and at like valuation other placed upon having thereof. Also or less acre for the the use of additional water assessed as right to on of the number of on the basis improvements number of of canal she held excess of her. assess- acres These land assessed to plaintiff’s of the in that column appeared ments on headed: “Improvements land,” using schedule fol- (or water,” “..sh. extra descriptive ex.) words: varying respective valuation lowed years. fixed for the disputed fair
It is not so values fixed were proper, thing subject if taxation. to assessed is any No other assessment has kind or character been attempted during any to made made or the assessor years right involved for to use of excess voluntarily paid Plaintiff ex- water. levied, taxes so cept any protest those for without took no action prevent being either
kind, assessments made payment applied to avoid until when she tax, county county commissioners of Otero refund paid of the taxes and abatement of the 1932 all of tax, erroneously which she claimed were levied. assessed and application The commissioners the in- denied this proceeding stant sibly osten- was instituted the district court appeal county
anas action from commis- reality, plaintiff original sioners, but, asserts, as an proceeding to determine issue.
Admittedly during paid years the taxes discharged protest without and the never statutory herself of availed administrative remedies allegedly illegal for relief from the assessments. This proceeding likely disposed adversely plain- could be proceed, tiff for her failure to so view of the novel but in proper nature of her contention we have deemed it express trial court, our issues involved. The views adversely plain- proceeding likewise merits, on the held tiff. thing
Plaintiff contends assessed taxation such, taxation and, as §205), (’35 under section L. 1921 C. O. S. c. A., *4 company and, in in mutual was as stock ditch addition, nontaxable X, under section Article Colorado of the applicable portion being Constitution—the hereinafter (’35 quoted—and A., c. section C. L. C. S. §23), pursuance enacted thereof. premise argues
On the her that when second cultivated as assessed and taxed of stock her acre, lands on the basis of liability her water complete assess- rights ment right of the additional her excess represented by stock, an improvement sepa- as her amounts to land, rate of assessment violative the constitutional provision mentioned. last Section of the canal IV, bylaws article of the com- ‘‘ to
pany, provides: so far as it is stock pertinent, be only issued to water owners Catlin ditch right evidenced water deeds Consoli- by issued by Catlin dated Canal Company amount and the of stock to which each water right owner is entitled be determined as follows, to-wit: right To each said water there owner shall of fully issued, capital of this company, paid the of same the whole of the stock of said water company right the water or each owner rights has therefor water bears the whole amount of the rights Catlin by said The Consolidated Canal sold Company; said stock named issuing person in the certificate a holder thereof shall relin- sign quishment of right under water deeds issued by the Catlin Company; Consolidated Canal an accep- tance of of said stock lieu water as evidence said deeds her or right its his, use water from the Catlin ’ ’ Canal. is evident the issu- provision prior ance of canal present indi- company, vidual water consumers under the ditch predecessor by its deeds, evidenced which deeds bylaws required to be surrendered issued the present company, accepted “in consumer lieu said water as evidence deeds its his, right the use from the Catlin ’’ Canal. Section article bylaws canal com- IV, follows: pany is as “Each holder stock shall be entitled to receive from canal water company’s domestic purposes lying and for of lands *5 of thereof, said canal, the line extension owned by following or controlled said in shareholder, the the capital eighteen to-wit: of For each amount, (.018) per of one one-thousandths cubic foot of water say (80) eighty of that is time; second for forty-four (1.44) of stock one and cubic one-hundredths being feet time, water second of amount of re- the quired irrigate eighty (80) land. certifi- acres of Each designate upon of shall cate the the which apply represented by stockholder intends to the water applied any that certificate and such water shall not be specified than other land in certificate the unless describing new certificate stock is issued the proposed change which it is the water and such new no certificate shall the be issued until certificate has been old secretary surrendered to the for Provided, cancellation. may upon proper, the board of directors in its discretion satisfactory showing being permit sufficient and made temporary delivery represented by any cer- water ’’ tificate of stock to those named lands other than therein. by
The stock
de
certificates held
her 458
scribed
acres
land as the limited situs
application of
she
water
was entitled to receive
request
the canal.
No transfer
for a
certificates or
changed
during
period
use of
water
and no
made
necessity
in
suit
this
discus
arises
any resulting questions
might
sion of
which
arisen
have
contingencies.
definitely appears
from these
company
organized
mutual canal
the convenience
in
its members
the distribution to them their water
respective
in
their lands
use
to their
interests.
certifi
Under these circumstances
company,
they
cates
canal
the form in which
merely
plaintiff,
by
were issued and
held
right,
right,
muniments of
title to
thing
unquestionably
of value owned
her,
was real
clearly
This rule
estate and not
stock.
concurring*opinion,
stated
Justice Butler in his
which,
case of
majority
joined,
District,
Comstock
Drainage
v.
Olney Springs
*6
50
the
416,
(2d)
P.
where
is
“Counsel
for
it
said:
plaintiff
in error
the law—that water
admit—and it is
rights
They say,
are real
how
irrigation
property.
that
ever,
are
That
personal property.
shares of stock
in
irri
is
of
corporations,
true of
stock
including
shares
organized for
where the
gation corporations,
profit; but
here, a
irrigation
a mutual
company
company, or,
is
mutual reservoir
not
but
company,
profit,
organized,
management
convenience of members in
the
its
the
in
to
system
the
them of
and
the distribution
in
water
their
to their respective
upon
in
interests,
corporation
of stock
the
ownership of shares
incidental
right,
is but
to
of water
which is
ownership
appurtenant
which
is used.
upon
the land
the water
Irrigation Co.,
See Ireton v. Idaho
Idaho 310, 317, 164
Co.,
689. In Kendrick v. Twin Lakes Reservoir
Pac.
We do not logically argued bar, the case can how it plaintiff limiting it the use of the excess stock of represents her lands, is se supra, it conceded under section when is portion remaining the per identical right which confers factor basis is the character of cultivated acres and makes it taxable as such.
Discussing question now the involved. second Constitution, X,
Section article the Colorado pertains subject discus so far as to the matter under provides: by sion, and flumes owned canals “Ditches, *7 irrigating corporations land individuals used or corporations, the individ owned such individuals or or separately long taxed thereof, ual members not so shall be exclusively pur they for such as poses.” shall owned and used be pointed in case out observed, will as is be that this con 1142, v. 64 Pac. Bond, of Shaw Colo. 366, 171 provision properties stitutional not such does only, they requires that not be shall from taxation, but separately Reservoir taxed. In Twin Lakes Kendrick v. Bond, su 58 Colo. 144 Pac. and in Shaw v. Co., pra, this statute, terms of our section under the reading part §17), (’35 L. 1921 in C. C. S. c. A., ‘improvements’ follows: as term includes build “The ings, rights, fences erected structures, fixtures, and upon land,” are decided affixed improvements purposes as listed for tax be and valued upon which water is used. the land right, although therefore conclude that this water We represented prop- the stock described, certificates improve- erly plaintiff’s in tax schedule as an included arriving to the in at the total valuation for tax ment placed purposes her real estate. be 354 the case
Thus
bar is
from the
distinguished
case of
v.
Commissioners
Cortes
Company,
Colo.
Pac.
996, principally relied upon by
plaintiff,
where the
assessed was shares of
of a
com-
thing
mutual ditch
pany
were assessed
such
not as
and
improve-
ments
taxpayer.
to land of the
result
propriety
of this assessment
standpoint
equitable
plain
an
valuation of
tiff’s real estate, which under our revenue laws is
total
value
the land and
improvements
can
thereon,
hardly be denied. Of necessity,
theory
under Colorado’s
value
farm real
taxation,
vary
estate must
direct
worth
extent
improve
land,
they
whether
ments
building,
structure,
Co.
right. San Luis
v.
fence or water
Trujillo,
385,
From
majority opinion
dissent on the ground,
wholly
among others,
is
inconsistent
with,
*8
in Commis
contrary to,
exactly
the decision
Co.,
sioners v. Cortes
81
254
Colo.
Pac.
a
996,
per
The opinion
case.
Mr. Justice
fectly parallel
there, by
not elab
brief,
the statement of facts
Denison,
is
is
I
However,
only
orate.
have
an examination
made
record,
the briefs in that
original
but also of the
case,
court.
record contains
now
on file in this
The
remaining
remarkably keen,
illuminating analysis
fair and
late W.
Searcy,
N.
the trial
made
facts
judge,
complaint
plaintiff here is almost
law.
and the
The
complaint in the
with the
Cortez
word for word identical
plead
comparison
cases,
two
case,
by pleading,
Co.
and a careful
by argument,
argument
ing
fact
fact, nothing
logic
justice
pronounce
or
could
discloses
principle
substantial
in fact or
between
two.
difference
language
against the Cortez Co.
used
case,
As
Garrigues
Bond,
Mr. Justice
v.
Mr. age Butler in Comstock v. (2d) 50 P. cannot aid us District, 97 Colo. question here. then under consideration was whether against drainage district effective assessment was against merely land and water itself. its the.land There reasonable decision on could have been no other question proposition. simply not touch the does namely, Constitution before whether the Colorado us, general property from taxes. and statutes certain Co., Kendrick v. Twin Lakes Reservoir inapposite, involve 144 Pac. does not likewise 884, is question us. here before present. Lack of time forbids further discussion