Colorado Inv. & Realty Co. v. Riverview Drainage Dist., 11744.

• Decision Date: 02 April 1928
• Docket Number: 11744.
• Citation: 83 Colo. 468,266 P. 501
• Parties: COLORADO INVESTMENT & REALTY CO. v. RIVERVIEW DRAINAGE DIST. et al.
• Court: Colorado Supreme Court

266 P. 501

83 Colo. 468

COLORADO INVESTMENT & REALTY CO. v. RIVERVIEW DRAINAGE DIST. et al.

No. 11744.

Supreme Court of Colorado, En Banc.

April 2, 1928

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

Action by the Colorado Investment & Realty Company against the Riverview Drainage District, a quasi municipal corporation and others. Judgment for defendants, and plaintiff brings error.

Reversed with directions.

D. B. Kinkaid, of Lamar, for plaintiff in error.

Gordon & Gordon, of Lamar, for defendants in error.

BUTLER J.

A general demurrer to the complaint of the Colorado Investment & Realty Company was sustained, the plaintiff stood upon its complaint, and the case was dismissed.

From the allegations of the complaint, some of which were stricken out on motion, it appears that one Cross owned a quarter section of land in the Riverview drainage district, which was organized in 1921; that the plaintiff then held a trust deed of the land; that the drainage ditch, as planned, traversed the land in question, and, if constructed as planned, would benefit the land; that the land was assessed for benefits upon the basis that the drainage ditch would be constructed as planned; that the vote of the electors was held, and the construction contract was awarded, upon that basis; that thereafter, without notice to the plaintiff 'or its predecessor in ownership,' and without their consent or acquiescence, and without any reassessment of benefits, the defendant district abandoned the course of the drainage ditch as originally planned, and constructed it on a new course that, as constructed, the ditch is of no benefit to the land in question; that in 1924 and 1925 the land was sold for nonpayment of assessments for 1923 and 1924; that on January 14, 1925, Cross conveyed the land to the plaintiff; that to avoid the loss of the property the plaintiff 'paid said drainage district taxes * * * to said treasurer of Bent county, under protest, duress, and coercion, * * * and received therefor a certificate of redemption and tax receipts'; that the plaintiff has been damaged by defendant district's failure to construct the ditch as originally planned, and by being compelled to pay the drainage district taxes so unlawfully assessed; that the defendants, the district and its treasurer, threaten to continue to assess and levy such illegal taxes and to sell the property, if such taxes are not paid. The plaintiff prays that the assessment, levy and collection of said taxes be decreed to be illegal; that it be decreed that the plaintiff is not indebted on account of said taxes; that the defendants be ordered to refund the money paid, and be restrained from paying out said money pending a determination of the suit, and be restrained from attempting to collect further taxes on the land; and that judgment be awarded plaintiff for damages in the sum of $1,385.79, being the amount of taxes paid.

Although the demurrer was general, there was only one point presented to, and determined by, the trial court. The court expressly confined its ruling to that one point. The order reads:

'The court * * * sustains the said demurrer, for the reasons set forth in the brief of the defendants filed herein.'

The point presented by the defendants and decided in their favor is that a drainage district cannot be sued because there is no statute authorizing suit against it.

1. May a drainage district be sued when there is no constitutional or statutory provision authorizing suit? We have held that counties are not liable for torts, in the absence of a statute imposing such liability. Board of County Commissioners, El Paso County, v. Bish, 18 Colo. 474, 33 P. 184. We also have held that the same rule applies to a school district. Newt Olson Lumber Co. v. School District (Colo.) 263 P. 723. Counties and school districts are mere subdivisions of the state, organized solely for a public purpose. A county is created for the purpose of exercising a part of the political power of the state. A school district is an agency through which the state acts in the performance of duties that the Constitution imposes upon the state. Defendants contend that, as the state cannot be sued without its consent, such agencies of the state cannot be sued without the consent of the state, and that a drainage district is such a state agency.

If in Colorado, as in some states, there were large areas of marshy, swampy, malaria-breeding lands, and, in the exercise of the police power, drainage districts were created by statute, regardless of the consent of the owners of the lands, to enable the state, through the agency of such districts, to remove the menace to the public health, such districts would be mere subdivisions of the state, state agencies for governmental purposes. The public benefit would be the primary consideration; the benefit to the owners of the reclaimed lands would be incidental and subordinate. Such are not the conditions in this state. Here, in what Judge Hallett, in Yunker v. Nichols, 1 Colo. 551, referred to as 'a dry and thirsty land,' the great problem for many years was, and to a great extent is now, not to get rid of water, but to obtain enough to irrigate the land. As an incident to irrigation, however, some areas have become seeped to such an extent as to render them in some instances wholly unproductive, but in most instances merely less productive. The owners of such lands are permitted, not compelled, to organize drainage districts. The primary purpose of such districts is to benefit the owners of the lands by making their lands productive, or more productive, as the case may be, and therefore more valuable. The benefit to the public (C. L. § 2107), though substantial, is incidental to the main purpose sought to be accomplished. The total cost of constructing and maintaining the drainage system is borne, not by the public generally, but by assessment of the lands benefited. We do not think that a drainage district in this state is a mere subdivision of the state, a mere state agency created for governmental purposes. Indeed, upon oral argument, one of the attorneys for the defendants, after referring to the contention that a drainage district cannot be sued, said, 'Frankly, we rely upon other grounds.' His lack of confidence in the contention is justified. We hold that in this state such a district may be sued.

2. In their brief, counsel for defendants urge many other objections to the complaint--objections that they did not present to the court below, and that were not passed upon by that court. Counsel for the defendants admit that they did not argue, or even direct the trial court's attention to these objections. They say, however, that the demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action is comprehensive enough to include these objections. They cite section 61 of the Code, which provides that the objection that the complaint does not state facts sufficient to constitute a cause of action may be raised at any time; and contend, in substance, that such objection may be urged for the first time in this court, even though no demurrer had been filed. That contention is sound, so far as it goes, and is supported by our decisions. But the question that we must determine in this case is whether, in the circumstances disclosed by the record, we are required to affirm the judgment, and thereby deprive the plaintiff of the opportunity to amend its complaint. Section 61 of the Code must be read in connection with other provisions, so that effect may be given to all. The main object sought to be accomplished by the Code is to subordinate form to substance, to prevent a sacrifice of the substantial rights...