CHAPTER 30. PROCEDURE UNDER EMINENT DOMAIN ACTS. § 164. Form of Action-Procedure-Waiver of Necessity. The form of the proceeding to condemn a right of way differs in the various states and territories, being regulated by statute. It is held in Colorado that the Code of Civil Procedure does not apply to these actions. (47) In Warner v. Town of Gunnison (48) the court discussed the question as to whether or not the party seeking the right of way should first make application to the owner of the land and be refused before he could institute proceedings in condemnation, but the question was not decided. In a case where an alleged right of way for the carriage of water through an irrigation ditch already constructed is controverted in a civil action under appropriate pleadings, it was held that the court may determine the controversy, notwithstanding the action is not a proceeding to condemn a right of way under the act of eminent domain. (49) The jury appointed to try the question of damages caused by taking land for a right of way for a ditch, cannot try the question of the necessity for taking the land; and by demanding a jury and voluntarily trying the question of damages, the respondent is held to have waived his right to have the preliminary question of the necessity of taking the land for the ditch submitted to a commission. (50) $165. Compensation and Damages. The very life of every eminent domain act is its provision for compensation. The constitutional inhibition against the taking of private property for a public purpose without compensation, makes such a (47) Knoth v. Barclay, 8 Colo. 300, 6 P. 924 ('85); Tripp v. Overocker, 7 Colo. 72, 1 P. 695 ('83). (48) 2 Colo. App. 430, 31 P. 238 ('92). (49) (50) Saint v. Guerrerio, 17 Colo. 448, 30 P. 335 ('92). Thompson v. DeWeese-Dye D. & R. Co., 25 Colo. 243, 53 P. 507 ('98). § 165, Compensation and Damages. provision an absolute necessity. (51) Where a party appropriates the land of another for the purpose of building a ditch, canal or reservoir, without seeking to condemn or to compensate the owner, the latter may proceed under the statute and compel compensation therefor. (52) The tribunal that ascertains and fixes the compensation to be paid is designated by statute. In Colorado this may be done either by a board of commissioners or by a jury. (53) In assessing the damages and fixing the compensation, the injuries to the residue of the lands by seepage and percolation should be anticipated and the damages for the same should be included in the original assessment; no subsequent recovery for such injuries will be allowed unless negligence or unskillful management is shown. (54) As we have seen, a settler who has taken no steps to secure title to the public domain can only recover for the injury to his improvements; (55) and a settler who initiates his title and receives his patent after the construction of a ditch or canal is begun, cannot recover any damages for its crossing his lands. (56) Where the land sought to be taken is covered by water and there is no question as to the title to the water other than that which comes from the ownership of the land beneath, the compensation recoverable is limited to the value of that part of the land taken, and the injury to the other property not taken. (57) (51) Tripp v. Overocker, 7 Colo. 72, 1 P. 695 ('83); Burnham v. Freeman, 11 Colo. 601, 19 P. 761 ('88); Downing v. Moore, 12 Colo. 316, 20 P. 766 ('88); Nippel v. Forker, 9 Colo. App. 106, 47 P. 766 ('97). (52) Beaver Brook Res. Co. v. St. Vrain Res. Co., 6 Colo. App. 130, 39 P. 132 ('95). (53) Sand Cr. Lateral Irr. Co. v. Davis, 17 Colo. 326, 29 P. 742 ('92). (54) Denver City Irr. & Water Co. v. Middaugh, 12 Colo. 434, 21 P. 565 ('89). In the following cases the form and sufficiency of the award are discussed--Sand Creek, etc., Co. v. Davis, 17 Colo. 326, 29 P. 742 ('92); San Luis L. C. & I. Co. v. Kenilworth C. Co. 3 Colo. App. 244, 32 P. 860 ('93); Otero C. Co. v. Fosdick, 20 Colo. 522, 39 P. 322 ('95). (55) Ante, $160, note 11. (56) Farmers' High Line C. & Res. Co. v. Moore, 22 Colo. 560, 45 P. 437 ('96). (57) Siedler v. Seeley, 8 Colo. App. 499, 46 P. 848 ('96). PART IX. TAXATION. CHAPTER 31.. TAXING DITCHES, FLUMES AND HEADGATES. § 166. Taxing Ditches as Property-Statutes Exempting. The right to use water for any beneficial purpose, and the ditch or canal through which it is conveyed, are property rights, and being property are subject to taxation unless expressly exempt by statute. (1) This rule would apply to such rights as are acquired by appropriation where these rights are declared property rights. (2) It does not apply to the enlarged rights of a riparian proprietor in the semi-arid states to make beneficial use of the water for irrigation as well as domestic purposes. This latter right is not the result of any act on the part of the riparian owner, but is a part and parcel of the riparian soil, and a taxation of the latter, therefore, taxes the former (3) A number of the states and territories have constitutional and statutory provisions exempting ditches and water rights from taxation. In Colorado by the constitution (4) it is provided that: "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 The state of Utah has a statutory provision in almost the same language. (5) Arizona, by the act (1) Empire L. & C. Co. v. Bd. Co. Com. Rio Grande Co., 21 Colo. 244, 249, 40 P. 499 ('95). (2) (3) For discussion of riparian rights, see ante, §§16-19. Ante, $40. (4) Art. 10, $3. (5) Rev. Stat. '98, §2503. § 166, Taxing Ditches as Property-Statutes Exempting. of 1899, (6) exempted all reservoirs, canals and other property used for the development, conservation, storage and distribution of water for mining, manufacturing or agricultural purposes for a period of fifteen years after completion, subject to certain conditions. This act was repealed by the act of 1901, (7) and re-enacted by the act of 1903. (8) New Mexico exempts such property for a period of six years from the commencement of construction. (9) Oklahoma, by an act for the encouragement of irrigation, (10) gives a rebate on taxes for the construction of dams, ponds and reservoirs to be used in irrigation, while Idaho (11) and Montana (12) make special provision for the taxation of canals, ditches, flumes and their franchises. § 167. Statutes Taxing and Exempting Construed. In assessing ditch, canal or reservoir properties, the excavated ditch, canal or reservoir with flumes and headgates, as the vehicle for the transportation or storage of water, should be considered in levying taxes. (13) The provision of the Colorado constitution (14) was adopted to relieve from separate taxation only those canals which are exclusively used for irrigating lands owned by those who own the canal in whole or in part. The word "exclusively" relates to the persons or corporations who, as owners, make use of the canal, and not to the character or nature of that use. (15) A corporation owning a ditch constructed for the purpose of selling and disposing of water rights, (16) together with parcels of land owned by the corporation, on condition that (6) (7) (8) (9) (10) (11) (12) Sess. L. '99, p. 20. Rev. Stats. '01, §2, ch. 1, Final Title. Comp. Laws '97, §1758. Rev. Stat. '03, §§3301-3304. 1 Codes '01, §1356. 1 Codes '05, §3719. (13) Empire Land & Canal Co. v. Co. Treas. Rio Grande Co., 1 Colo. App. 205, 28 P. 484 ('91). (14) Art. 10, 83, quoted in preceding section. (15) Empire L. and C. Co. v. Board of Co. Com'rs, 21 Colo. 244, 40 P. 499 ('95). (16) Ante, $129. when all or most of such rights are sold, the price thereof paid, the ditch, appurtenances, stock and franchise may pass to those who purchased the water rights, (17) is not within the provision of the Colorado constitution, (18) and its property is taxable. (19) The court holds that it is evident that the intention was only to exempt in cases where the ditch and water right could be regarded under the decisions as appurtenant (20) and the land taxed to cover the increased value so as to prevent double taxation. (21) Exemptions from taxation are to be strictly construed and cannot be enlarged by construction. The privilege must be limited to the very terms of the law under which it is claimed. (22) The water system for selling water to the inhabitants of a city and used in conveying the water from the river to such city is not exempt from taxation under the Utah statute.(23) (20) Ante, $130. (21) Empire L. & C. Co. v. Co. Treas., 1 Colo. App. 205, 28 P. 482 (91); Murray, Rec., v. Board Co. Com'rs, 28 Colo. 427, 65 P. 26 ('01). (22) Id. (23) Bear River Irr. Co. v. Ogden City, 8 Utah 494, 33 P. 135 |