Murray v. Board of Com'rs of Montrose County

• Decision Date: 06 May 1901
• Citation: 28 Colo. 427,65 P. 26
• Parties: MURRAY v. BOARD OF COM'RS OF MONTROSE COUNTY.
• Court: Colorado Supreme Court

65 P. 26

28 Colo. 427

MURRAY v. BOARD OF COM'RS OF MONTROSE COUNTY.

Supreme Court of Colorado

May 6, 1901

Error to district court, Montrose county.

Action by the board of county commissioners of Montrose county against Charles A. Murray, receiver of the Loutsenhizer Ditch Company, to enforce payment of taxes. Judgment for plaintiff and defendant brings error. Affirmed.

F. D. Catlin and Stuart & Murray, for plaintiff in error.

John Gray, for defendant in error.

GABBERT J.

The contention of plaintiff in error is that under the facts the Loutsenhizer ditch, by virtue of the provisions of the constitution and laws of the state, is exempt from taxation. The trial court held that it was not. Plaintiff in error claims that the ditch is owned and used by the Loutsenhizer company and its co-owners exclusively for the purpose of irrigating lands owned by them. From the pleadings and evidence it appears that the ditch company is a corporation organized and existing under the laws of this state for the purpose of building and maintaining an irrigating ditch. Consumers under this ditch have acquired their rights by virtue of deeds from the company which provide that each water right purchased shall vest in the holder or owner under stated restrictions, the right to the perpetual use of water flowing through the ditch of the company, not exceeding one cubic foot of water per second; that the number of water rights which may be sold from the ditch shall be based upon the estimated capacity of such ditch system; and that, when the practical carrying capacity of the ditch has been disposed of by the company, the system may be turned over, at its option, to the holders of water rights therein. By a supplemental agreement between the company and most of the holders of the water rights it was agreed that, when water rights equal to the amount of 160 cubic feet of water per second of time (or less, if the company should so elect) have been disposed of it should, without further considertion, for the benefit of the purchasers of water rights, deed its canal, franchises and property to a new company, in the manner provided in the original water deeds. The company has sold, approximately, water rights aggregating one-half of the estimated capacity of the ditch. It still retains the title to the ditch, and has made no offer to deed to the consumers, as provided in the water deeds or the supplemental agreement thereto. The company is still offering to sell water rights, and purposes enlarging its ditch so that its capacity may equal 160 cubic feet per second. The constitution (article 10,§ 3) provides, 'Ditches, canals and flumes, owned and used by individuals or corporations for irrigating lands owned by such individuals or corporations, or the individual members thereof, shall not be separately taxed, so long as they shall be owned and used exclusively for such purpose.' In harmony with this provision, the legislature has provided 'that all ditches used for the purpose of irrigation, and that only, where the water is not sold for the purpose of deriving a revenue therefrom, be and the same are hereby declared free from all taxation,...