Wyoming Central Irrigation Co. v. Farlow

Beard, Chief Justice. The plaintiff in error, Wyoming Central Irrigation Company, brought this action in the district court of Fremont County against Henry M. Farlow, as county treasurer and collector of taxes of said county, defendant in error, to enjoin him from collecting certain taxes on the ground that the property upon which said taxes were levied was not subject to taxation. The district court sustained a general demurrer to plaintiff’s petition and entered judgment dismissing the petition. Plaintiff brings error. It appears by the petition that plaintiff is a corporation organized and existing under the laws of Wyoming, for the object and purpose of constructing a system of irrigation canals, ditches and reservoirs upon the ceded portion of the Wind River or Shoshone Indian Reservation, in Fremont County. That said company procured from the State Fngi-neer permits to divert sufficient of the waters of Big Wind River and its tributaries to irrigate the irrigable lands described and lying under the canals of said proposed system. That the company constructed some ten or fifteen miles of one of said canals, and has sold of contracted to sell to consumers, at $20 per acre and upwards, the perpetual right to the use of said canal for the purpose of conducting the water to which such consumers are entitled, to their lands. [79] Such consumers to pay to the company annually their proportionate part of the expense of maintaining the canal, not exceeding forty cents per acre per annum. The irrigable lands lying under said canal are estimated to contain 10,000 acres, and the company has sold or contracted to sell such rights for 3,725 acres, and still has for sale and is offering for sale such rights for the remainder of said irrigable lands. By the terms of the deeds and contracts between the company and such consumers it is provided that when the company shall have sold and received payment in full for all, or ninety per cent of all, the water granted said company in the permits issued by the state engineer, it shall have the right at its option to either, first: Issue to such consumers shares of its capital stock in such proportion as the rights sold bear to the whole number of rights under the system; provided, that until the transfer of all of its capital stock to purchasers of ninety per cent or all of the water rights under the system, the direction, management and control of its canals and system shall not pass to or be exercised by the owners or holders of said stock, but shall remain with the company. Or, second: When the company shall have sold and received payment in full for all or ninety per cent of all of said rights, it shall have the right to organize the water users into a water users’ association, and to transfer to such asso- ' ciation all of its right, title and interest in said system. Or, in lieu of the plan last stated the company may organize an independent operating company, to which the water users should convey the rights acquired from the company for stock in the operating company. Neither of these things has been done; and it is clear that whatever rights or interests those holding deeds or contracts from the company have in the canal in question, the company still retains a large interest therein as co-owners at least with said Water users. The contention of plaintiff’s counsel is, that the water rights and interests in the canal are appurtenant to the land and that the canal is not, therefore, taxable separate from the land. For the purposes of this case it may be conceded that that is true so far as the holders of deeds or [80] contracts from the company are concerned; but the company owns no land to which its interest in the canal could be appurtenant. In the case of Murray v. Montrose Comity, 28 Colo. 427, a case more nearly on all fours with the'case at bar than we usually find, the Supreme Court of Colorado, speaking through Mr. Justice Gabbert, said: “True, the consumers pay nothing in the shape of annual rentals for the use of water, except such assessments as may be levied for the purpose of keeping the ditch in repair. 'Conceding they own an interest in the ditch, they are not as yet the sole owners. The company is a co-owner with them; the title to the ditch is still vested in the corporation. It has-, reserved to itself the right to retain such title until the capacity of the ditch has been sold. It still has a large number of water rights which it is offering for sale. While it may be true that at some time in the future, the ditch will be owned exclusively by those using water therefrom for the purpose of irrigating lands which they own, or in which they are interested, that is not the condition at the present time. The evident purpose of the company in still retaining title to the ditch is to derive a revenue from - the future sale of water rights. That the purchasers of such rights may use the water in irrigating their lands only does not change the situation. The fact still remains that so long as the company is interested in the ditch with water rights remaining unsold, it is its purpose to make use of the ditch as a means through which to' derive a profit from the sale of future water rights.” In the case just quoted from, the plaintiff, Murray, was the receiver of the ditch company and claimed, as plaintiff in this case claims, that the ditch was not subject to taxation; but the court held otherwise. In this state all property not exempt by law is taxable, and ditches or other water systems owned by individuals or corporations and not appurtenant to land owned by such individual or corporation are not among the exemptions. On the contrary, “the property of corporations or companies, whether incorporated or formed in this state or not, constructing or owning canals, ditches, flumes, railways, tele [81] graph lines, plank • roads, graded roads, turnpike or toll roads, bridges, ferries, and similar improvements, shall be assessed to the company or corporation.” (Sec. 2330, Wyo. Comp. Stat. 1910.) The petition failing to state facts sufficient to1 constitute a cause of action, the demurrer thereto was properly sustained. 'The judgment of the District Court is affirmed. Affirmed. Scott and Potter, JJ., concur.