21 Colo. 244 | Colo. | 1895
delivered the opinion of the court.
To this complaint in the district court a demurrer was interposed upon two grounds, which are urged here: First, that there is a misjoinder of parties defendant; and, second, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer is a joint demurrer of the two defendants, but, in order to entitle such one as- is improperly joined as a defendant (if there is any such misjoinder) to raise this question, a separate demurrer should have been filed by him who is improperly joined. As- this objection cannot be raised by a joint demurrer, the only question is upon the second ground. The district court sustained the demurrer, and upon appeal to the court of appeals the judgment was affirmed, and from the-'latter judgment the plaintiff has brought the ease by writ, of error to this court.
By this provision of the constitution, ditches,'canals and flumes may be divided into three general classes : (1) Those owned by one or more individuals, and exclusive!}' used for irrigating the lands of said individuals, or the lands of any of them; (2) those owned by a corporation, and exclusively used for irrigating lands belonging to the corporation and lands belonging to shareholders of the corporation; or lands of the corporation or the shareholders, or any thereof; (3) those owned in part by a corporation and partly by individuals, and exclusively used for irrigating lands belonging to the corporation and to said individual owners, or the lands of the corporation or said individuals, or any thereof.
While the complaint avers that the plaintiff corporation is the owner of the Empire Canal, there is nothing, except by way of inference, to show for what purpose such corporation was organized. But a fair construction' of the pleading is that the principal purpose was to sell for profit lands owned by the corporation, and as incident thereto, and to facilitate the same, to build a canal and to sell with the lands water rights to irrigate the same.
That such canal may be exempt from separate taxation— that is, .exempt from taxation separate from taxation of the lands irrigated by such canal — depends upon the use to which it is devoted. It is contended by plaintiff in error, first, that the word “exclusively” in the constitutional provision .relates not to the persons or corporations who, as owners, mate use of the canal, but to the character or nature of that use ; that if the canal is exclusively used for the purpose of irrigating lands, the canal is exempt from taxa
But this language will bear no such forced interpretation. In the absence of this provision, all canals, irrespective of the use made of them, would be subject to separate taxation. Taxation is the rule; exemption from taxation the exception. This provision was adopted to relieve from separate taxation only those canals which are exclusively used for irrigating the lands owned by those who own the canals either in whole or in part. If it exempts all canals so long as they are exclusively used for irrigation, then practically no canals can be taxed, and the provision is meaningless.
Upon the theory that the exemption applies only to canals exclusively used to irrigate lauds of their owners, plaintiff in error contends, second, that the complaint shows that the canal is exclusively used to irrigate (a) only the lands of the plaintiff corporation and the lands of the individual members thereof, or (5) lands owned by the corporation and by the individuals which together own the canal.
This must be determined from the complaint alone. The rule is fundamental, not now announced as something new, that for the purposes of a demurrer the truthfulness of the allegations of the pleadings thus objected to is admitted. But a reference is here made to the doctrine because arguments have been urged in support of a supposed case not made by this complaint, and our opinion has been asked, apparently with the expectation that it would be given, upon important questions that are not now before us. If the facts pertaining to the Empire Canal and the use that has been made of it are not as set forth in the complaint, the proper way to present the true or different state of facts, or to complete the partial statement contained in the complaint, is by way of answer, not by demurrer.
Our decision, then, is predicated upon the issues, and those alone, which are presented by the pleadings.
This canal is exempt from taxation upon either or both of two grounds. A fair construction of the allegations of the
It also appears from the allegations of the complaint that by these contracts of purchase the grantees of water rights have acquired an interest in the canal itself, and that the complete ownership of the canal is vested in the plaintiff corporation and its individual grantees, so that the canal has always been exclusively devoted to one, or both, of two uses, viz., first, for irrigating lands owned by the plaintiff corporation and lands owned by its individual shareholders; second, for irrigating lands owned by the plaintiff corporation and by individuals who, by their contract with the plaintiff for the purchase of water rights, have secured a partial ownership in said canal, which canal was and now is owned by the plaintiff corporation and by said individual grantees.
The radical difference between these conclusions and those reached by the court of appeals in 1 Colo. App. 210, springs from the construction given to the averments of the pleading, and not, of necessity, from the opinions entertained by the two courts with respect to the rights of the owners of lands who hold rights to water carried by the canal; but in view of .the variance between the courts on this question as shown in Wyatt v. The Larimer & Weld Irrigation Co., 18 Colo. 298, which was decided long after the judgment in the present suit, some reference ought perhaps to be made to one paragraph of the opinion rendered by the other court. It is said therein: “ The right to demand water from the ditch, and have a given quantity per second delivered from the ditch to the consumer, carries with it no property interest in the ditch itself. It is at most but a contract sounding in damages in case of nonperformance on the part of the corporation.”
We do not regard the suggestions of fact as supported by the complaint, and as a declaration of law, as to the nature of this class of water rights, we would be compelled, in a
Therefore, if the exclusive use is to irrigate lands of the corporation and its shareholders, the canal comes within the scope of the second general class above mentioned. If the canal is owned by the corporation and individuals, and is exclusively used to irrigate only their lands, then it comes within the third general class above mentioned.
No question is raised by the defendant of any indefiniteness or uncertainty in the complaint as to which of the foregoing classes this canal belongs, nor is there any objection that two causes of action have not been separately stated in the complaint.
To this is applicable the observation, in the first part of this opinion, that only such questions as are fairly presented by the complaint and the general demurrer are before us for determination.
It follows that the demurrer to the complaint should have been overruled. The judgment, therefore, of the court of appeals is reversed, with directions to reverse the judgment of the district court of Rio Grande county, and remand the cause to that court for further proceedings in accordance with this opinion.
Heversed.
