Antero & Lost Park Reservoir Co. v. Board of Com'rs of Park County

• Decision Date: 03 March 1924
• Docket Number: 10184.
• Citation: 75 Colo. 131,225 P. 269
• Court: Colorado Supreme Court
• Parties: ANTERO & LOST PARK RESERVOIR CO. v. BOARD OF COM'RS OF PARK COUNTY et al.

225 P. 269

75 Colo. 131

ANTERO & LOST PARK RESERVOIR CO. v. BOARD OF COM'RS OF PARK COUNTY et al.

No. 10184.

Supreme Court of Colorado, En Banc.

March 3, 1924

Rehearing Denied April 7, 1924.

Error to District Court, Park County; James L. Cooper, Judge.

Suit by the Antero & Lost Park Reservoir Company, a corporation against the Board of County Commissioners of the County of Park and the Colorado Tax Commission. To review the order rendered, both parties bring error.

Affirmed in part, and reversed in part.

Paul M Clark and J. H. Burkhardt, both of Denver, for plaintiff in error.

Dawson & Wright, of Denver, John M. Boyle, of Fair Play, Victor E Keyes, Atty. Gen., and Charles Roach, Deputy Atty. Gen., for defendants in error.

SHEAFOR, J.

Suit brought to recover taxes paid by plaintiff, assessed against its reservoirs, and other property connected therewith, for the years 1909, 1911, 1912, and 1913 to 1918, inclusive. Plaintiff claims to have paid these taxes under protest, and that they were illegal and void by reason of the property being nontaxable and because the assessments were improperly made.

A demurrer was sustained to the first and second causes of action for the taxes of 1909 and 1911, for the reason, as the court held, that they were barred by the statute of limitations. No serious complaint is made of the court's ruling in this respect. Unquestionably these causes of action were barred by the statute and the court was right in so holding.

The trial court held in favor of the plaintiff, that it was entitled to recover the taxes paid for the year 1912, and for the years 1916 to 1918, inclusive, and held in favor of the defendants, that the plaintiff was not entitled to recover the taxes paid for the years 1913 to 1915, inclusive. Both parties assign error.

For the year 1912 it appears that the properties assessed were the improvements constituting the reservoirs. This court has held the dam not an improvement on the land, and not taxable. Antero & Lost Park Reservoir Co. v. County Commissioners of Park Co., 65 Colo. 375, 177 P. 148.

It is not quite clear what property the assessment was against for the year 1912, or its basis, or what the defendants attempted to establish as the basis for the assessment of the plaintiff's property for that year.

Mr Link testified in substance that they did not make a specific assessment; that they took the whole concern as a unit; that they took the value of the plaintiff's water rights as a basis, and in arriving at that basis they took into consideration the securities of the company, the amount of water, and the value thereof, and the possibilities of the future storage of water. He also said that, as he saw it, there was only one thing to be found, and that was the value of the water rights of the reservoir company.

We are of the opinion that parol evidence was inadmissible to establish the facts in regard to the assessments made. If the fact of an assessment could be so established, it would defeat the rule requiring that the listing and valuation of property should be a matter of definite record; but even if the parol evidence admitted could properly be considered, the evidence was conflicting as to the assessment for the year 1912, and the findings of the court based thereon cannot be disturbed. The assessment for the year 1912 was made by the Tax Commission in conjunction with the county assessor of Park county. For the subsequent years involved in this controversy, the assessments were made by the tax commission. It appears from the record that they made the assessments as a unit, that there were no listing and valuation of water rights, nor of any other specific property.

Mr. Link further testified that the basis of their assessment was really unsold water rights, and that was the only object they had in view. From the testimony of Mr. Link it is difficult to determine whether the tax commission assessed the unsold water rights, or priorities to the use of water decreed to the reservoir and which the tax commission considered to be unsold. It appears that the company does not retain any of the priorities to the use of water. The trial court found:

'That, at the time of the levies and assessments complained of until the conveyance thereof to the city and county of Denver, the plaintiff had and retained and owned valuable reservoir rights in Park county, Colo., and that, except for the year 1912, it was against and upon these reservoir rights that the taxes

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