Wyoming Central Irrigation Company v. Farlow
| Decision Date | 24 June 1911 |
| Docket Number | 646 |
| Citation | 114 P. 635,19 Wyo. 68 |
| Parties | WYOMING CENTRAL IRRIGATION COMPANY v. FARLOW, COUNTY TREASURER |
| Court | Wyoming Supreme Court |
Original Opinion of April 3, 1911, Reported at: 19 Wyo. 68.
Rehearing denied.
P. B Coolidge and M. C. McGiffin (E. H. Fourt and E. H. Stearns of counsel), for plaintiff in error.
(On Petition for Rehearing.) In sustaining the judgment of the lower court, this court overlooked and failed to pass upon the alleged erroneous assessment upon the entire taxable valuation of the ditch against the irrigation company, when it clearly appears from the petition that the plaintiff had sold and contracted to sell water rights and proportionate rights in the ditch for the irrigation of three thousand seven hundred twenty-six acres of land, and had actually executed and delivered deeds to settlers, constituting them tenants in common with the plaintiff in an undivided interest to the ditch itself. The court also failed to pass upon the question raised by that portion of the petition which shows that the entire value of the ditch was also taxed pro rata against the owners of the lands, no distinction being made between those who had bought undivided interests and those who had not. If the ditch is to be taxed as a whole, both against land owners and the plaintiff, a clear case of double taxation will result. The Colorado case cited in the opinion is not in point for the reason that the systems of irrigation law in Colorado and Wyoming are essentially different respecting the acquisition of water rights in this: That under the Wyoming system an irrigation ditch, from the time the permit is granted, is appurtenant to certain specifically described land, and no other, whereas under the Colorado system, no permit is issued, and no land is specifically described; so that the ditch is not appurtenant to any land until the appropriation is complete, and even then there is no record of the land to which the ditch is appurtenant until the water rights upon the stream have been adjudicated by the courts.
SCOTT, J., did not sit.
ON PETITION FOR REHEARING.
Counsel for plaintiff in error have filed a petition for a rehearing in this case, and in their brief in support of the same still insist that the canal in question should not be held to be subject to taxation, because to so hold would tend to retard the development of the resources of the state. That would be a proper argument to present to the legislature, but the courts are without authority to exempt property from taxation, for that or any other reason, which the statute does not exempt. It is further insisted that the demurrer to the petition should have been overruled and plaintiff in error permitted to show the extent of the interests of others in the canal, and should have afforded the company relief to that extent. To this there are two answers. First, the deeds as recited in the petition do not purport to convey any title to the canal, but only the right to use it for the purpose of conducting water to the lands of the grantees. The language is, "the said party of the first part does hereby sell transfer, convey and quit claim unto said party of the second part--perpetual...
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