Coates v. Board of Com'rs of Prowers County

• Decision Date: 03 April 1922
• Docket Number: 10050.
• Citation: 205 P. 943,71 Colo. 241
• Court: Colorado Supreme Court
• Parties: COATES et al. v. BOARD OF COM'RS OF PROWERS COUNTY et al.

205 P. 943

71 Colo. 241

COATES et al. v. BOARD OF COM'RS OF PROWERS COUNTY et al.

No. 10050.

Supreme Court of Colorado

April 3, 1922

Department 1.

Error to District Court, Prowers County; A. F. Hollenbeck, Judge.

Action by Howard Coates and others against the Board of County Commissioners of Prowers County and others. Judgment for defendants, and plaintiffs bring error.

Reversed and remanded.

Hillyer & Kinkaid, of Lamar, for plaintiffs in error.

Todd &amp Underwood, of Lamar, for defendants in error.

ALLEN J.

This is a suit for an injunction to restrain the board of county commissioners of Prowers county from including the lands of the plaintiffs within a proposed drainage district. Other relief, consistent with such injunction, is prayed for. A temporary injunction was denied. The cause was dismissed following the sustaining of a demurrer to the amended complaint upon the ground that it fails to state facts sufficient to constitute a cause of action. The plaintiffs bring the cause here for review.

A petition for the organization of a drainage district was presented to the board of county commissioners, and plaintiffs, who are owners of lands within the boundaries of the proposed district, filed petitions for the exclusion of their lands from the district. The board denied the petitions for exclusion.

From the allegations of the amended complaint, it appears that the proceedings for the organization of the drainage district were carried on in conformity with the provisions of the Drainage District Act of 1911 (chapter 124, p. 311, S. L 1911), and were regular and valid except as to the board's refusal to exclude plaintiffs' lands.

The amended complaint alleges that at the hearing before the board of county commissioners sworn testimony was given which clearly established the fact that the lands in question are not seeped, are cultivable, useful and fully so, and would not be benefited by the proposed drainage system, and that their drainage would not be conducive to the public health, convenience, utility, or welfare. It is further alleged, in effect, that all this evidence was and remained uncontradicted, and that the action of the board in refusing to exclude plaintiffs's lands constituted a gross abuse of discretion.

It is a general rule that only land which will derive a benefit from the improvement should be included in a drainage district. 19 C.J. 618; 9 R.C.L. 645. Our...