Anderson v. Grand Valley Irr. Dist.

• Decision Date: 08 January 1906
• Citation: 35 Colo. 525,85 P. 313
• Parties: ANDERSON v. GRAND VALLEY IRR. DIST. et al.
• Court: Colorado Supreme Court

85 P. 313

35 Colo. 525

ANDERSON v. GRAND VALLEY IRR. DIST. et al.

Supreme Court of Colorado, En banc.

January 8, 1906

Appeal from District Court, Mesa County; Theron Stevens, Judge.

Proceedings by the Grand Vailey Irrigation District and others against Charles W. Anderson. From a judgment in favor of plaintiffs defendant appeals. Reversed.

This is a special proceeding instituted in the district court of Mesa county under the irrigation district law of 1901, found in Session Laws of that year at page 198 (chapter 87). Its object, in the language of the statute, is to obtain a judicial examination, approval, and confirmation of the proceedings of the irrigation district and its board of directors providing for and authorizing the issue and sale of its bonds. The trial court approved all such proceedings and confirmed the validity of the bonds and the order for their sale, and its judgment is brought here for review by appellant, who appeared as a defendant below. Considering the nature of the objections urged to the decree and the disposition that is made of them, it is well at the outset to summarize the substantive provisions of this act, as well as the remedial provisions under which this special proceeding is conducted. The act is modeled upon, and is substantially similar to, the California 'Wright Irrigation District Act' of 1887 (St. 1887, p. 37, c. 34), as the same has been subsequently amended by the Legislature of that state. It provides that whenever a requisite number of the resident freeholders 'owning lands in any district susceptible to one mode of irrigation from a common source and by the same system of works, desire to provide for the irrigation of the same, they may propose the organization of an irrigation district under the provisions of this act,' which 'shall have the powers conferred or that may hereafter be conferred by law upon such irrigation district,' provided that where already there exist proper and sufficient facilities for irrigating any lands within the proposed district, they shall be excluded from the operation of the statute, and the vested rights which the owners of such lands have theretofore acquired are not affected by it. The method of procedure is by petition, filed with the board of county commissioners of the proper county, which shall describe the boundaries of the proposed district and pray for its organization. The petition must be published for at least two weeks before the time at which the same is to presented together with a notice stating such time. A hearing upon the petition to all persons interested at the designated time is enjoined upon the board, and upon final hearing such changes in the boundaries of the district as seem proper may be made and the board shall thereupon proceed to establish and define the boundaries of the district, but, in doing so, no land shall be exempted therefrom which is susceptible of irrigation by the same system of works applicable to other lands of the district, or included therein which, in the judgment of the board, will not be benefited by irrigation by the contemplated system, and in no case shall any lands be held by any district or taxes for irrigation purposes which cannot from any natural cause be irrigated thereby. There are provisions whereby, on application of the owner, other lands than those originally sought to be included in the district may be taken in. There are also specific provisions for the election by the qualified electors of three directors and a treasurer of the district which election is under the direction and control of the board of county commissioners due notice of which must be given, and proper safeguards and ample regulations are made for conducting the election making the canvass of the vote, and the induction into office of those elected. The powers and duties of these district officers are prescribed, and times and places for their regular meetings designated, and directions for all future elections made.

Among the powers conferred upon the district board is that to construct, purchase, and condemn canals, reservoirs, water rights, and to acquire such other property as may be necessary for carrying out the provisions of the act. The manner in which such general power is to be exercised is not material here. It is sufficient to say that it is amply guarded with a view to the protection of the interests of those upon whom the burdens of the act are devolved. The use of all property, including water rights, acquired and necessary for the irrigation of the lands of any district so formed, is declared to be a public use and subject to the regulation and control by the state in the manner prescribed by law, and the title to such property is immediately vested by operation of law in the irrigation district in its corporate name, to be held by such district in trust for, and is dedicated and set apart to, the uses and purposes set forth in the act. Provision is made for issuing negotiable bonds of the district for the purpose of paying for property acquired by it in carrying out the scheme devised, the payment of which bonds and interest thereon, as well as the ordinary current expenses in conducting the corporate enterprise, is to be made out of revenues derived from an annual assessment upon the real property of the district. The county assessor must assess and enter upon his records the assessment of all real estate, exclusive of improvements, situate in any irrigation district, and, after the same has been duly equalized and extended as provided by law, make a return of the amount thereof to the board of county commissioners of the appropriate county. Upon the receipt from the assessor of the returns of the total assessment, and of the certificate of the board of directors certifying the amount of money required to be raised for the payment of bonds and expenses, it is made the duty of the board of county commissioners to fix the rate of levy necessary to provide the required sum. The county treasurer of the appropriate county is made the collector of this revenue, and, by section 20 (page 214) of the act, the revenue laws of the state for the assessment, levying, and collecting of taxes on real estate for county purposes are made applicable to the assessment, levy, and collection of taxes under this particular act, except as thereby modified.

Changes in the boundaries of the districts and the exclusion of lands therefrom and inclusion of lands therein, and provisions for the dismemberment or dissolution of the districts, are made which, however, are not now of material concern. The water which the district is authorized to acquire for purposes of irrigation of its included lands must be apportioned ratably to each landowner upon the basis of the ratio which the number of acres susceptible of irrigation last assessed to such owner for district purposes within the district bears to the whole number of acres susceptible of irregation within the district, and the water right so apportioned shall attach to, and follow, the tract of land held in freehold to which it is so apportioned, either under lease or sale; and in case the volume of water at the disposal of the district is not sufficient to supply the continual wants of the entire district, provision is made for a just and equitable apportionment thereof by the board of directors to the consumers, with due regard to the legal and equitable rights of all. The remedial portions of the act under which this proceeding was instituted begin with section 55 (page 228). In substance they are that the board of directors of any district organized under the act may commence special proceedings in the appropriate court, by which there may be examined the proceedings of the district and its board providing for and authorizing the issuing and sale of its bonds, whether the bonds, or any of them, have, or have not, been sold, in order to secure a decree of the court approving and confirming all such acts as in anywise affect the validity of the organization and the legality of the bonds, and, if found regular and in conformity with the law, a decree of approval and confirmation is to be rendered. When this petition is filed, the court fixes a time for hearing the petition, and orders the clerk to give and publish a notice which shall state the time and place fixed for the hearing, in which notice the petition must be referred to or described in such way as to give due notice of its contents and state the nature of the decree asked for. Any landowner or other person interested in the district may appear and demur to, or answer, the petition, which, unless controverted, shall be taken as true, and all persons affected by the proceeding who fail to appear or answer the petition shall be deemed to have admitted as true its material averments. A hearing is then had upon the issues, if any, thus joined, and upon the court is expressly conferred jurisdiction to make the examination and determination already outlined.

Chas. F. Caswell and Erastus W. Smith, for appellant.

Carnahan & Van Hoorebeke and J. C. Helm, for appellees.

CAMPBELL, J., after the preceding statement, delivered the opinion of the court.

The foregoing summary of the law, though omitting many details is sufficient for our present purpose. The chief objections which the appellant landowner, who appeared below to defeat the object of the proceeding, urges upon this appeal to the decree of confirmation are constitutional in character. Apparently the board of directors of the district has strictly complied with--at least there is no contention that it has disregarded--the procedure which the act of 1901 prescribes for the organization of the district, and has properly taken the various subsequent steps...