28 Colo. 427 | Colo. | 1901
delivered the opinion of the court.
The contention of plaintiff in error is, that under the facts the Loutsenhizer ditch, by virtue of the provisions of the constitution and laws of the state, is exempt from taxation. The trial court held that it was not. Plaintiff in error claims that the ditch is owned and used by the Loutsenhizer Company and its co-owners exclusively for the purpose of irrigating lands owned by them.
From the pleadings and evidence it appears that the ditch company is a corporation organized and existing under the laws of this state, for the purpose of building and maintaining an irrigating ditch. Consumers under this ditch have acquired their rights by virtue of deeds from the company which provide that each water right purchased shall vest in the holder or owner (under stated restrictions) the right to the perpetual use of water ■flowing through the ditch of the company not exceeding one cubic foot of water per second; that the number of water rights which may be sold from the ditch shall be based upon the estimated capacity of such ditch system, and that when the practical carrying capacity of the ditch has been disposed of by the company, the system may be turned over, at its option, to the holders of water rights therein. By a supplemental agreement between the company and most of the holders of the water rights, it was agreed that when water rights equal to the amount of 160 cubic feet of water per second of time (or less, if the company should so elect), have been disposed of, it should, without further consideration, for the benefit of the purchasers of water rights, d'eed its canal, franchises and property to a new company in the manner provided in the original water deeds. The company has sold, approximately, water rights aggregating one-half
The constitution provides: “Ditches, canals and flumes, owned and used by individuals or corporations, for irrigating lands owned by such individuals or corporations,or the individual members thereof, shall not be separately taxed, so long as they shall be owned and used exclusively for such purpose.” Sec. 3, Art. 10.
In harmony with this provision, the legislature has provided “That all ditches used for the purpose of irrigation, and that only, where the water is not sold for the purpose of deriving a revenue therefrom, be and the same are hereby declared free from all taxation, whether for state, county or municipal purposes.” Sec. 2397, 1 Mills Ann. Stats.
In designating the property which shall be exempt from taxation, the statutes state: “* * * Ditches, canals, and flumes, owned and used by individuals or corporations for irrigating lands owned by such individuals or corporations, or the individual members thereof, shall not be separately taxed, so long as they shall be owned and used exclusively for such purpose * * * .” Sec. 3766 Mills Ann. Stats.
Exemptions from taxation are to be strictly construed, and cannot be enlarged' by construction, for unless the privilege Is limited to the very terms of the law under which it is claimed, its operation would be extended beyond what was intended. Cooley on Taxation, (2nd ed.) 205; 25 Enc. Law, (1st ed.) 157; Vicksburg, etc., R. R. Co. v. Dennis, 116 U. S., 665, 6 Sup. Ct. Rep., 625.
The proposition of counsel for plaintiff in error is, in effect, • that those owning water rights in the ditch are not charged for the use of water; that by virtue of the ownership of such water
The consumers appear to be making the use contemplated by the constitution, but the ditch company is not; hence,'the ditch is not used exclusively for the purpose of irrigating lands belonging to the owners of the ditch. In Empire Canal Co. Case, supra, the facts as deduced from the averments of the complaint are
Affirmed.