Utah Metal & Tunnel Co. v. Groesbeck

• Decision Date: 28 September 1923
• Docket Number: 3971
• Citation: 219 P. 248,62 Utah 251
• Parties: UTAH METAL & TUNNEL CO. v. GROESBECK, County. Treasurer
• Court: Utah Supreme Court

219 P. 248

62 Utah 251

UTAH METAL & TUNNEL CO. v. GROESBECK, County. Treasurer

No. 3971

Supreme Court of Utah

September 28, 1923

Appeal from District Court, Third District, Salt Lake County; A. R Barnes, Judge.

Action by the Utah Metal & Tunnel Company against E. J. Groesbeck as County Treasurer. Judgment for defendant, and plaintiff appeals.

AFFIRMED.

Dey Hoppaugh & Mark, of Salt Lake City, for appellant.

A. E. Moreton, Co. Atty., and Geo. G. Armstrong, Asst. Co. Atty., both of Salt Lake City, for respondent.

CHERRY, J. WEBER, C. J., and GIDEON, THURMAN, and FRICK, JJ., concur.

OPINION

CHERRY, J.

This is an appeal from a judgment in favor of the defendant, in an action to recover a tax paid under protest to defendant as county treasurer of Salt Lake county. The trial court sustained a demurrer to the plaintiff's complaint, for want of facts, and the plaintiff declining to plead further, judgment was rendered dismissing the action.

The complaint formally alleges the following ultimate facts:

The plaintiff is a corporation engaged in metal mining in its properties situated in Bingham Canyon. In driving a tunnel in the process of its mining operations, a flow of water was developed in its mine. By an agreement with the prior appropriators of the waters of a natural stream called Middle Canyon creek, which is situated in Tooele county, the plaintiff discharges a portion of its developed waters in said creek, and in exchange diverts an equal quantity from the creek at a higher point. That for several years previous to 1915, the plaintiff used the waters obtained by the said exchange in connection with its own mining operations, but previous to the year 1921 discontinued such use, and by contracts with the Utah Copper Company agreed to and does furnish for hire the exchanged waters and the remainder of its developed waters, to the latter named company, who takes it from the plaintiff in Tooele county, and conducts it through its own pipe lines to Salt Lake county, where it uses the same for mining purposes.

That for the year 1921 the state board of equalization assessed the said water rights against the plaintiff for taxation in Salt Lake and Tooele counties in which they were described and valued in each county as follows: "Water rights, dams and improvements (leased to Utah Copper Company), value of improvements $ 30,000.00."

That subsequently a tax of $ 636 was levied thereon in Salt Lake county, and a tax of $ 525 in Tooele county, both of which the plaintiff paid under protest.

It is further alleged that the water rights are an integral part of plaintiff's mine, and that the plaintiff's mine and improvements thereon and the appurtenances thereto, other than said so-called "water rights, dams and improvements," were separately assessed for the year 1921 to the plaintiff, and a tax of $ 3,824.02 levied thereon which was paid by the plaintiff.

It is further alleged "that several other mining companies in the state of Utah have developed water in their mining operations and some of them sell the right to the use of said water, and that said board in assessing and taxing said mines treats said water rights as part of the mines and does not value or tax said water rights separate and apart from said mines," etc., for which reason the tax assessed against the plaintiff is discriminatory, deprives it of the equal protection of the law and of its property without due process of law.

The plaintiff prays for judgment for the sum of $ 636, the amount of the tax paid under protest to the treasurer of Salt Lake county.

The appeal presents the single question of whether the complaint states a cause of action. The tax is presumed to be valid, and to state a cause of action to recover back the tax paid under protest the complaint must distinctly allege facts which render the tax illegal. 37 Cyc. 1188, 1189.

In this case the ownership and assessed valuation of the property assessed are not disputed. Neither is it claimed that the property was taxed otherwise than by the assessment in question. But it is contended that the tax collected was illegal because (1) the property assessed was not taxable to the plaintiff in Salt Lake county; (2) that it was not taxable separate from plaintiff's mine; (3) that if the water rights, etc., assessed were not an integral part of plaintiff's mine, they could not be taxed as an appurtenance to that mine, since if they were appurtenant to anything they were appurtenant to the mine of the Utah Copper Company, to whom they were furnished and by whom they were used; and (4) that the assessment was discriminatory because similar rights were not assessed to other owners separate and apart from their mines.

Whether or not the property assessed was subject to taxation in Salt Lake county depends upon its situs. By Constitution of Utah, art. 13, § 10, all property is taxable within the territorial limits where owned or used. Comp. Laws Utah 1917, § 5875, provides that all taxable property must be assessed in the county, city, town, or district in which it is situated, and section 5923, as amended by chapter 114, Laws Utah 1919, provides that the state board of equalization shall apportion the total assessment of property situated in more than one county, to the several counties through or into which such property extends, etc.

It is alleged that the plaintiff's mine is situated in Bingham Canyon, Utah; that the water in question was developed by driving a tunnel in its mine; that at a point in Tooele county the water is delivered to Utah Copper Company, who takes it in its own pipe to Salt Lake county for use in the latter county. (The exchange with the prior appropriators of Middle Canyon creek is a mere incident for the convenience of the parties and does not affect the identity of the water owned by plaintiff.)

The legal attributes of water depend upon its form and position and change as the form and position of the water changes. It may be granted that the waters in question, in their natural state, were diffused and percolating and were indistinguishable from and a part of the soil of the plaintiff's mine. But when the plaintiff by its tunnel collected the waters in a definite body, they were severed from the soil and thereafter assumed a new form and position, "a habitation and a name," and took on a different legal aspect. When waters are reduced to...