House v. Board of Com'rs of Larimer County

• Decision Date: 08 June 1931
• Docket Number: 12500.
• Citation: 89 Colo. 196,300 P. 998
• Parties: HOUSE v. BOARD OF COM'RS OF LARIMER COUNTY.
• Court: Colorado Supreme Court

300 P. 998

89 Colo. 196

HOUSE v. BOARD OF COM'RS OF LARIMER COUNTY.

No. 12500.

Supreme Court of Colorado, En Banc.

June 8, 1931

Error to District Court, Larimer County; Claude C. Coffin, Judge.

Action by E. B. House against the Board of Commissioners of Larimer County. Judgment was entered dismissing the action, and plaintiff brings error.

Reversed and remanded.

H. A. Alpert and Stow & Stover, all of Ft Collins, for plaintiff in error.

Winton M. Ault, of Ft. Collins, for defendant in error.

MOORE J.

E. B House sued the board of county commissioners of Larimer county, Colo., in the district court to recover $2,712.55 paid by him to the treasurer of Larimer county, Colo. The complaint charged that the town of Berthoud wrongfully levied a special improvement (paving) tax against certain specific property, a portion of the right of way of the Colorado &amp Southern Railway Company, and, in the default of payment of same, the treasurer of Larimer county wrongfully sold the property to plaintiff for the sum sued for. A demurrer for want of facts was interposed and sustained. Plaintiff elected to stand on his complaint, and judgment was entered dismissing the action to review which this writ is prosecuted.

Plaintiff bases his right to recover upon section 7444, C. L. of 1921, which provides: 'When, by mistake or wrongful act of the treasurer, clerk or assessor, or from double assessment, land has been sold on which no tax was due at the time, the county shall hold the purchaser harmless by paying him the amount of the principal and interest, at the rate of eight per cent. per annum; and the treasurer, clerk or assessor, as the case may be, and his sureties on his official bond, shall be liable to the county from sales made through his mistake or misconduct.'

Chapter 180, section 6, Session Laws of 1923, provides for the method of assessment and collection of special improvement taxes for paving and grading purposes chargeable against or assessable to any railway company. It provides:

'* * * The assessment levied for the cost of said improvements chargeable to a railway company shall be first and perpetual prior lien against the entire franchise and property of the company, both within and without said district, but within the limits of the city or incorporated town where such improvement is made, on a parity with general taxes; and all the terms, conditions and provisions in this act contained relative to the collection of the amounts chargeable against property specially benefited, shall be applicable in the emforcement and collection of such assessment against such railway company, and the property of such railway company shall, in case of default in payment of such assessment, be sold as in cases of default in payment of general taxes levied thereon; but railway trackage shall not be considered or computed as assessable frontage in determining the sufficiency of petitions as herein provided.

'Section 7. In case of the improvement of any street or alley as hereinbefore provided, the cost of such improvement, or such part thereof as may be assessed against the property especially benefited, including the intersections of streets and alleys but excepting the share to be assessed against railway companies, may be assessed on land to a substantially equal depth from the street or alley improved, and its intersections, without regard to lot or land lines, on a frontage, zone or other equitable basis, in accordance with benefits, as the same may be determined by the ordering authority.'

From the foregoing, it appears that the proportionate amount of assessment which a railway company is required to pay for the cost of a special improvement for grading or paving is to be determined by the same method applicable to abutting property owners. Such assessment is against the railway company, and not its specific property within the improvement districts. The procedure upon...