Opinion
No. 13,464.
Decided October 7, 1935.
Suit to quiet title, involving the question as to whether a treasurer's deed to land, issued on default of payment of assessments levied for drainage district purposes, conveyed to the grantee water rights, and certificates of water stock representing water rights, used on the land described in, and conveyed by, the deed. Judgment for plaintiff.
Affirmed.
1. APPEAL AND ERROR — Fact Findings. Fact findings of the trial court which are sustained by competent evidence will not be disturbed on review.
Concurring Opinion.
2. WATER RIGHTS — Real Property. Water rights for irrigation are real property.
3. CORPORATIONS — Stock — Water Rights. Shares of stock in corporations organized for profit are personal property, but where the corporation is a mutual irrigation company not for profit, ownership of its shares of stock is but incidental to ownership of the water right, which is appurtenant to the land upon which the water is used.
4. WATER RIGHTS — Attached to Land. An irrigation corporation may provide that the water rights represented by its stock shall be attached to the land upon which the water is used and pass only with it.
5. DRAINAGE DISTRICTS — Bonds — Water Rights. Chapter 36 of the Compiled Laws of 1921, confers upon drainage districts the power to assess water rights pertinent to lands in the district, for drainage purposes, and a treasurer's deed to land issued in default of payment of assessments levied for such purposes conveys not only the land, but the water rights pertinent thereto, including those represented by shares of stock.
Error to the District Court of Crowley County, Hon. John H. Voorhees, Judge.
Mr. JOHN B. BARNARD, Mr. C. FRED BARNARD, for plaintiff in error.
Mr. HARRY E. MAST, for defendant in error.
THE plaintiff, the Olney Springs Drainage District, is a public corporation organized under chapter 36, C.L. 1921 of Colorado, relating to drainage districts. This district embraces a number of sections of land situate in Crowley county, Colorado, totaling a little over two thousand acres. The board of directors of the district, in June, 1921, made findings of the increased value which would accrue to the lands of the district if the contemplated drainage thereof was made. In pursuance of the object in view, and under authority of the state statute so providing, an election by the qualified electors of the district was held in August, 1921, resulting in an authorization by them of the issue of $40,000 of bonds for the purpose of accomplishing the proposed drainage. Thereafter, as the result of the election, such a levy was made by the directors upon the lands of the district. The directors found that among other lands which would be benefitted by the creation of the proposed district were lands that belonged to the grantor of the defendant in this action, Lida Comstock, and specified the amount of such benefits. She refused to pay the assessments against her lands and for her failure to pay the same, proper proceedings were had under the statute so providing whereby county treasurer's deeds for such lands were issued to the district. The sole question for decision here, as agreed by the respective parties and as found by the trial court, is: Do these treasurer's deeds have the effect of conveying to the plaintiff district the water rights in the Colorado Canal (the canal in question), and the certificates of water stock mentioned and described in the deeds?
In the opening brief of plaintiff in error here, counsel states what the trial court itself said, that the only question here for determination is, Do the treasurer's deeds have the effect of conveying to the plaintiff the water rights in the Colorado Canal, and the water stock described in the agreed statement of facts? The defendant, and other land owners in the district, refused to pay the assessments made by the district upon their lands and for this failure the county treasurer, proceeding under the statute applicable in such cases, proceeded to sell, and did sell, the lands. The trial court made elaborate findings, which we have hereinabove endeavored to condense. The record shows that the evidence produced upon the controverted issues sustained the trial court's findings of fact. These findings of fact justify the decree of the court. The trial court found as a fact that all the proceedings which the statute requires to be taken in such cases were observed by the drainage district. We cannot interfere with such findings, sustained as they are by competent evidence. The decree is therefore affirmed in its entirety.
MR. CHIEF JUSTICE BUTLER specially concurs.