Hale v. Jefferson County

• Decision Date: 22 May 1909
• Citation: 101 P. 973,39 Mont. 137
• Parties: HALE v. JEFFERSON COUNTY et al.
• Court: Montana Supreme Court

101 P. 973

39 Mont. 137

HALE v. JEFFERSON COUNTY et al.

Supreme Court of Montana

May 22, 1909

Appeal from District Court, Jefferson County; Lew L. Callaway Judge.

Injunction by Robert S. Hale against the County of Jefferson and others. From a judgment for defendants, and an order denying motion for new trial, plaintiff appeals. Reversed and remanded.

Massena Bullard and Wm. Wallace, Jr., for appellant.

Albert J. Galen, Atty. Gen., and E. M. Hall, Asst. Atty. Gen., for respondents.

BRANTLY C.J.

This action was brought on May 3, 1906, to obtain an injunction to restrain the defendant county of Jefferson, its commissioners, and treasurer from including in the assessment roll of taxable property for that year a certain ditch owned by plaintiff, and from levying and collecting taxes thereon. The issues made by the pleadings present the one question, to wit, whether this property is subject to taxation under the provisions of the Constitution declaring what property is taxable, and the statute enacted in pursuance thereof, as having a value independent of placer lands to which it is appurtenant. The cause was tried by the court upon an agreed statement of facts, which, omitting the formal parts stipulating the capacity of defendants, is the following:

"That during all the times mentioned in the complaint herein the plaintiff was and is the owner by purchase from the United States of certain placer mining claims in Lewis & Clark county, Mont., aggregating about five hundred (500) acres no part of the surface ground of which claims or any part thereof is used for other than mining purposes, or had a separate or independent value for [other] than mining purposes, and that, upon all of said placer mining claims, the plaintiff has for many years paid and continues to pay all taxes levied or assessed against said mining claims and each thereof as provided by law.

"(4) That plaintiff is, and for many years last past has been, the owner of a certain mining ditch known as the Park ditch, which ditch is used to convey certain waters to said mining claims for use in working, operating, and developing said mining claims, and that said ditch is property and surface improvements appurtenant to said mining claims.

"(5) That a portion of said ditch is situate in Jefferson county, Mont.; said portion being about 14 miles in length.

"(6) That plaintiff has never made any use of the said Park ditch, or of the waters conveyed thereby, other than for mining purposes upon his said mining claims, and does not receive and never has received any revenue or money from said ditch, or the waters conveyed thereby, save and except as the result of his use of said ditch and water upon said mining claims. That plaintiff has never sold or conveyed any part of said ditch, or the waters conveyed thereby, and makes no use whatever of said ditch or waters conveyed thereby separate or independent of said mining claims.

"(7) That the defendants have during many years last past against the protest of the plaintiff caused said ditch to be assessed for purposes of taxation, and required plaintiff to pay taxes thereon each year under threats by said defendants to sell said ditch at tax sale if the taxes assessed and levied against said ditch should not be paid. That, at the time of the commencement of this action, the county assessor of Jefferson county had assessed that portion of said ditch situate in Jefferson county for the purpose of taxation for the year 1906, and it was the intention of the said county commissioners to levy taxes against said ditch for said year 1906, and it was the intention of said county treasurer, if the taxes as assessed and levied against said ditch had not been paid, to advertise said ditch for sale for delinquent taxes, and to sell or attempt to sell said ditch at tax sale for the taxes so assessed and levied, and that, unless so restrained and enjoined, the said defendants will assess said property for the purposes of taxation and levy taxes thereon for the year 1906 and 1907, and said county treasurer will, if the taxes so assessed and levied against said ditch shall not be paid, advertise said ditch for sale for delinquent taxes, and will sell or attempt to sell the said ditch at tax sale for the years 1906 and 1907.

"(8) That plaintiff has for many years last past listed said property for taxation, and for said purposes has valued the same as high as eight thousand dollars ($8,000). That said property was not listed for taxation by said plaintiff voluntarily, but that it was so listed because the plaintiff was demanded to list the same by the assessor of Jefferson county, and that the taxes paid thereon were paid by plaintiff under protest. That plaintiff was not fully advised as to his legal rights and listed said property for taxation because so demanded, and because it seemed to him for the time being to be better to list the same than to be put to the expense, delay, and vexation of litigation for the purpose of securing an adjudication of his legal rights. That in listing said property for assessment and placing a value thereon the plaintiff never at any time made any statement [that] the property had a value separate and independent of his mining claims.

"(9) It is

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