Horn v. Shaffer

• Citation: 47 Utah 55,151 P. 555
• Decision Date: 21 August 1915
• Docket Number: 2760
• Court: Utah Supreme Court
• Parties: HORN v. SHAFFER, County Treasurer

151 P. 555

47 Utah 55

HORN v. SHAFFER, County Treasurer

No. 2760

Supreme Court of Utah

August 21, 1915

Appeal from District Court, Fourth District; Hon. A. B. Morgan Judge.

Action by E. E. Horn against J. M. Shaffer, as County Treasurer of Uintah County.

Judgment of nonsuit. Plaintiff appeals.

REVERSED and REMANDED, with directions.

A. L Booth for appellant.

Wallace Calder for respondent.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The plaintiff brought this action in equity against the defendant, as county treasurer of Uintah county, Utah to enjoin him from collecting a special tax assessed by the New Hope Irrigation District on certain real property owned by plaintiff. After making the necessary allegations of inducement, the plaintiff in his complaint among other things alleged:

"That the pretended assessment against the plaintiff and his said lands of the said purported tax item given as 'N Hope,' as above described, was not and could not be legally made, for the reason that at the time of the pretended organization of said New Hope Irrigation District, and for many years immediately prior thereto, to wit, ever since the year 1906, the plaintiff, as co-owner with others, had constructed a ditch, and had conveyed through said ditch water to his said lands as hereinbefore described, and had used said water on the said lands for irrigation and other beneficial purposes. Said water had been obtained under application No. 1090 in the office of the state engineer of the state of Utah and the said ditch had been constructed and completed to the satisfaction of the said state engineer, and the said state engineer has now finally approved the said application 1090 and this plaintiff, ever since the filing of the said application, has been the owner of said water right for the irrigation of said lands. That said water applied for and obtained under said application is now, and at all times since the same was conveyed on said lands has been, ample and sufficient to properly irrigate for the raising of agricultural crops of all kinds the whole of said 160 acres of land owned by the plaintiff as aforesaid, and the said lands of this plaintiff are and always have been wholly exempt from the operation of the laws of the state of Utah governing irrigation districts. That the pretended officers of said New Hope Irrigation District have always known of the appropriation of the said water by this plaintiff for his lands as aforesaid, and have known of the construction and completion of the said irrigation ditch by the plaintiff as aforesaid."

The plaintiff further alleged that said irrigation district was not organized for the purpose of purchasing, etc., the irrigation ditch mentioned in plaintiff's complaint; that the tax in question was void, for the reason that the statute authorizing the irrigation district aforesaid was invalid; and that the defendant threatened to, and would, unless restrained, advertise and sell plaintiff's said real property.

The defendant appeared in the action, and in answer to the allegations of the complaint which we have heretofore set forth averred as follows:

"The defendant denies on information and belief that the plaintiff's land described in said amended complaint at the time of the organization of the New Hope Irrigation District was exempt from the operation of the irrigation district laws of the state of Utah under which said irrigation district was organized. Defendant alleges on information and belief that the ditch mentioned * * * was a temporary ditch, and that the plaintiff had no vested right in said ditch, and that he was merely licensed to use the said ditch until such time as the system of canals and laterals, which the New Hope Irrigation District was organized to purchase and construct, should be sufficiently completed to be available for carrying water to plaintiff's said land; that the plaintiff was, at the time of the organization of said district, a stockholder in the New Hope Irrigation Company, and that said company was at that time engaged in the construction of permanent canals and laterals for the purpose of irrigating the plaintiff's land described in said amended complaint, together with other land embraced in the New Hope Irrigation District as now constituted; and that the New Hope Irrigation District was organized to purchase, complete, and operate the said canals and irrigation works owned by the said New Hope Irrigation Company at the time of the organization of said district."

The allegations in the complaint were based upon the proviso contained in section 1 of chapter 74, Laws of Utah 1909, which reads as follows:

"Provided, that where ditches, canals, or reservoirs have been constructed before the passage of this act, such ditches, canals, reservoirs and franchises, and the lands watered thereby, shall be exempt from the operation of this law, except such district shall be formed to purchase, acquire, lease or rent such ditches, canals, reservoirs and their franchises."

It will be seen that plaintiff's allegations were also to the effect that the tax in question was illegal, because the officers of the irrigation district had no power or authority to levy a tax on plaintiff's land, and that the irrigation district was not organized for the purposes stated in the...