Wyoming Central Irrigation Co. v. Farlow

114 P. 635 | Wyo. | 1911

Lead Opinion

Beard, Chief Justice.

The plaintiff in error, Wyoming Central Irrigation Company, brought this action in the district court of Fremont County against Henry M. Farlow, as county treasurer and collector of taxes of said county, defendant in error, to enjoin him from collecting certain taxes on the ground that the property upon which said taxes were levied was not subject to taxation. The district court sustained a general demurrer to plaintiff’s petition and entered judgment dismissing the petition. Plaintiff brings error.

It appears by the petition that plaintiff is a corporation organized and existing under the laws of Wyoming, for the object and purpose of constructing a system of irrigation canals, ditches and reservoirs upon the ceded portion of the Wind River or Shoshone Indian Reservation, in Fremont County. That said company procured from the State Fngi-neer permits to divert sufficient of the waters of Big Wind River and its tributaries to irrigate the irrigable lands described and lying under the canals of said proposed system. That the company constructed some ten or fifteen miles of one of said canals, and has sold of contracted to sell to consumers, at $20 per acre and upwards, the perpetual right to the use of said canal for the purpose of conducting the water to which such consumers are entitled, to their lands. Such consumers to pay to the company annually their proportionate part of the expense of maintaining the canal, not exceeding forty cents per acre per annum. The irrigable lands lying under said canal are estimated to contain 10,000 acres, and the company has sold or contracted to sell such rights for 3,725 acres, and still has for sale and is offering for sale such rights for the remainder of said irrigable lands. By the terms of the deeds and contracts between the company and such consumers it is provided that when the company shall have sold and received payment in full for all, or ninety per cent of all, the water granted said company in the permits issued by the state engineer, it shall have the right at its option to either, first: Issue to such consumers shares of its capital stock in such proportion as the rights sold bear to the whole number of rights under the system; provided, that until the transfer of all of its capital stock to purchasers of ninety per cent or all of the water rights under the system, the direction, management and control of its canals and system shall not pass to or be exercised by the owners or holders of said stock, but shall remain with the company. Or, second: When the company shall have sold and received payment in full for all or ninety per cent of all of said rights, it shall have the right to organize the water users into a water users’ association, and to transfer to such asso- ' ciation all of its right, title and interest in said system. Or, in lieu of the plan last stated the company may organize an independent operating company, to which the water users should convey the rights acquired from the company for stock in the operating company. Neither of these things has been done; and it is clear that whatever rights or interests those holding deeds or contracts from the company have in the canal in question, the company still retains a large interest therein as co-owners at least with said Water users. The contention of plaintiff’s counsel is, that the water rights and interests in the canal are appurtenant to the land and that the canal is not, therefore, taxable separate from the land. For the purposes of this case it may be conceded that that is true so far as the holders of deeds or contracts from the company are concerned; but the company owns no land to which its interest in the canal could be appurtenant. In the case of Murray v. Montrose Comity, 28 Colo. 427, a case more nearly on all fours with the'case at bar than we usually find, the Supreme Court of Colorado, speaking through Mr. Justice Gabbert, said: “True, the consumers pay nothing in the shape of annual rentals for the use of water, except such assessments as may be levied for the purpose of keeping the ditch in repair. 'Conceding they own an interest in the ditch, they are not as yet the sole owners. The company is a co-owner with them; the title to the ditch is still vested in the corporation. It has-, reserved to itself the right to retain such title until the capacity of the ditch has been sold. It still has a large number of water rights which it is offering for sale. While it may be true that at some time in the future, the ditch will be owned exclusively by those using water therefrom for the purpose of irrigating lands which they own, or in which they are interested, that is not the condition at the present time. The evident purpose of the company in still retaining title to the ditch is to derive a revenue from - the future sale of water rights. That the purchasers of such rights may use the water in irrigating their lands only does not change the situation. The fact still remains that so long as the company is interested in the ditch with water rights remaining unsold, it is its purpose to make use of the ditch as a means through which to' derive a profit from the sale of future water rights.” In the case just quoted from, the plaintiff, Murray, was the receiver of the ditch company and claimed, as plaintiff in this case claims, that the ditch was not subject to taxation; but the court held otherwise. In this state all property not exempt by law is taxable, and ditches or other water systems owned by individuals or corporations and not appurtenant to land owned by such individual or corporation are not among the exemptions. On the contrary, “the property of corporations or companies, whether incorporated or formed in this state or not, constructing or owning canals, ditches, flumes, railways, telegraph lines, plank • roads, graded roads, turnpike or toll roads, bridges, ferries, and similar improvements, shall be assessed to the company or corporation.” (Sec. 2330, Wyo. Comp. Stat. 1910.)

The petition failing to state facts sufficient to1 constitute a cause of action, the demurrer thereto was properly sustained. 'The judgment of the District Court is affirmed.

Affirmed.

Scott and Potter, JJ., concur.

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Rehearing

ON PETITION POR REHEARING.

Beard, Chiep Justice.

Counsel for plaintiff in error have filed a petition for a rehearing in this case, and in their brief in support of the same still insist that the canal in question should not be held to be subject to taxation, because to so hold would tend to retard the development of the resources of the state. That would be a proper argument to present to the legislature, hut the courts are without authority to exempt property from taxation, for that -or any other reason, which the statute does not exempt. It is further insisted that the demurrer to the petition should have been overruled and plaintiff in error permitted to show the extent of the interests of others in the canal, and should have afforded the company relief to that extent. To this there are two answers. First, the deeds as recited in the petition do not purport to convey any title to the canal, but only the right to use it for the ■ purpose of conducting water to the lands of the grantees. The language is, “the said party of the first part does hereby sell, transfer, convey and quit claim unto said party of the second part — perpetual water right — to have the use of-the water flowing through that portion of its irrigation system constructed, or to be constructed, for the irrigation of lands herein described, each watér right representing and being the proportionate right to use one-half cubic foot of water per second of time, during the irrigation period of each year.” And again, “said water right, so sold and conveyed as aforesaid, shall be a proportionate right to the use, for domestic and irrigation purposes upon the lands herein described, of the water authorized by the permits of the state engineer to said party of the first part, to be appropriated through and by means of its canals, together with a proportionate right, share and interest in the use of said canals and lateral ditches with all rights incident thereto,” etc. We think it thus clearly appears from the petition that the company holds the legal title to the entire canal, and that it was not its intention to part with that title, or its control over the canal, except in some one of the three ways mentioned in the opinion; which, as there stated, has not been done. Second, the company not only held the legal title to the entire canal, but was the absolute owner of a large part of it, and owned no lands and had no contracts with other owners of lands to which the part of it so owned might in the future become appurtenant. Being such owner, it was required in justice and equity to pay what was justly and equitably due; and having neither paid or offered to pay any part of said taxes, it is not in a position to invoke the powers of a court of equity in'its behalf. (U. P. Ry. v. Ryan, 2 Wyo. 408; Horton v. Driskell, 13 Wyo. 66; National Bank v. Kimball, 103 U. S. 732.) It has also been held by this court that where a person has some personal property subject to taxation but is assessed for more than he claims to own, the remedy is by application to the board of equalization for the correction of the assessment, and not by injunction to restrain the collection of the tax. (Board of Com’rs. v. Searight Cattle Co., 3 Wyo 777; Ricketts v. Crewdson, Treas., 13 Wyo. 284; Crewdson v. Nefsey Co., 14 Wyo. 61; See also N. P. R. R. Co. v. Patterson, 10 Mont. 90, and Delinquent Tax List v. Territory, 4 Ariz. 186.) In the present case the tax is not an illegal tax in the sense of being a tax not authorized by law, and as we hold that the interest of the company in the canal is subject to taxation, the case comes within the rules announced in the cases above cited, and the petition does not present a case for equitable relief by way of injunction. The former opinion is adhered to and a rehearing denied.

Rehearing denied.

Potter, J., concurs.

Scott, J., did not sit.