Shaw v. Bond

• Decision Date: 01 April 1918
• Docket Number: 8908.
• Citation: 171 P. 1142,64 Colo. 366
• Parties: SHAW et al. v. BOND, County Treasurer, et al.
• Court: Colorado Supreme Court

171 P. 1142

64 Colo. 366

SHAW et al. v. BOND, County Treasurer, et al.

No. 8908.

Supreme Court of Colorado, En Banc.

April 1, 1918

Error to District Court, Jefferson County; H. S. Class, Judge.

Injunction by Alva Shaw, as receiver of the Reservoir Company, and others, against Frank J. Band, as Treasurer of Jefferson County, and others. To review a judgment dismissing the cause and overruling motion for new trial, plaintiffs bring error. Reversed and remanded.

This suit in equity by injunction is brought by plaintiffs in error against the assessor, treasurer, and board of county commissioners of Jefferson county to have certain taxes assessed and levied against the dam, the dam and reservoir site, and the inlet ditch or canal of Standley Lake reservoir, declared and adjudged invaid; and to restrain the collection of the tax and the issuance of a tax deed. By the dam and reservoir site is meant the surface of the earth upon which the dam and banks stand, and the basin or bed of the reservoir inundated.

The complaint alleges that the reservoir and irrigation company one of plaintiffs in error, was organized to construct operate, and maintain a system of ditches, canals, and reservoirs in Denver, Adams, Arapahoe, Jefferson, Boulder Gilpin, Grand, and Weld counties, Colo., for the purpose of diverting, storing, and distributing to its stockholders only, water for the irrigation of lands owned by its stockholders; that it is a mutual ditch company organized for the purpose of constructing, operating, and maintaining a system of ditches, canals, and reservoirs for the distribution of water for irrigation to its stockholders or members only; that its properties have at all times been owned and used exclusively for such purposes; that its ditches and canals and reservoirs are owned and used exclusively by individuals or corporations who are stockholders of the company, for irrigating lands owned exclusively by such individuals or corporations, or the individual members thereof, and are not subject to taxation separate from the taxation of the land upon which the water right is applied; that it owns ditches, canals, and reservoirs for collecting and conveying water from one county to be distributed in another county or counties; that it owns a certain reservoir called Standley Lake and its inlet ditch called Croke canal, situated in Jefferson county, which are integral parts of the irrigation unit and were constructed and are operated and maintained for the purpose of diverting and collecting water in Jefferson county to be conveyed and distributed in that and other counties for irrigating the lands of its stockholders in that and other counties; that the other plaintiff in error, Alva Shaw, is the duly appointed and acting receiver of the company; that in 1909 the county assessor, notwithstanding the property was exempt from separate taxation, listed, valued, and assessed for taxation purposes in Jefferson county, the dam, dam site, and reservoir site or bed of the reservoir, which taxes were extended upon the assessment roll for that year; that the dam and reservoir sites were listed at the value of $18,440, and the dam was listed and valued at $40,000; that in 1910 the county treasurer sold the property en masse for the taxes of 1909 for the sum of $1,723.46, and issued a tax certificate to the purchaser and threatens and is about to issue a single tax deed therefor; that the property was again assessed in like manner for the taxes of 1910 and 1911, which were for those years paid by the holder of the tax certificate; that Croke canal extends from its headgate in Clear creek to the reservoir, and was assessed for taxation for the years 1910 1911, and 1912; that in 1910 it was valued for taxation at $22,530 and the tax was $682.93, in 1911 it was valued at the same amount and the tax was $684.67, in 1912 it was valued at $30,040 and the tax was $842.79, and on December 23, 1912, it was sold for taxes and bid in by the county and a certificate issued to the county; that the time of redemption of the reservoir from tax sales will expire December 24, 1913; that August 2, 1913, the treasurer published the usual notice that the holder of the certificate had made application to him for a treasurer's or tax deed, that the time for redemption would expire December 24, 1913, and unless redeemed on or before that date a deed would be issued and delivered as provided by law; that the treasurer threatens and is about to issue a deed to the holder of the certificate; that the assessments, levies, taxes, and tax sales embrace and apply to the reservoir and the ditch used to divert water from Clear creek into the reservoir, called Croke canal, and to no other land or property; that these county officers continue to assert the right to assess the canal and reservoir and to collect the tax by the sale of the properties; that the levy of the tax has created a cloud upon, and the issuance of a deed will cast a cloud upon, the title of the company to the ditch and reservoir and result in irreparable damage for which there is no plain, speedy, or adequate remedy at law that it will be harassed by a multiplicity of suits and a tax deed will disturb its occupancy of the properties and deprive it from maintaining and operating the ditch and reservoir to the irreparable injury of its consumers and stockholders; that it is, and at all times has been...