Colorado § 37-41-103 - Presentation and allowance of petition.

§ 37-41-103. Presentation and allowance of petition.

(1) When such petition is presented and it appears that the notice of the presentation of said petition has been given as required by section 37-41-102 (3) and that said petition has been signed by the requisite number of petitioners as required by this article, the board of county commissioners shall then proceed to define the boundaries of said proposed district from said petition and from such applications for the exclusion of lands therefrom and the inclusion of lands therein as may be made in accordance with the intent of this article. They may adjourn such examination from time to time, not exceeding three weeks in all, and by final order, duly entered, shall define and establish the boundaries of such proposed district; except that said board of county commissioners shall not modify such proposed boundaries described in the petition so as to change the objects of said petition or so as to exempt from the operation of this article any land within the boundaries proposed by the petition susceptible to irrigation by the same system of waterworks applicable to other lands in such proposed district; nor shall any land which will not in the judgment of the board be benefited by such proposed system be included in such district if the owner thereof makes application at a hearing to withdraw the same; also except that contiguous lands not included in said proposed district as described in the petition, upon application of the owners, may be included in such district upon such hearing.

(2) When the boundaries of any proposed district have been examined and defined, the board of county commissioners shall forthwith make an order allowing the prayer of said petition, defining and establishing the boundaries, and designating the name of such proposed district. Thereupon said board, by further order duly entered upon its record, shall call an election of the qualified electors of said district to be held for the purpose of determining whether such district shall be organized under the conditions of this article and, by such order, shall submit the names of one or more persons from each of the three divisions of said district to be voted for as directors therein. For the purposes of said election, the board of county commissioners shall divide said district into three divisions as nearly equal in size as may be practicable and shall provide that a qualified elector of each of said three divisions shall be elected as a member of the board of directors of said district by the qualified electors of the whole district.

(3) Each of said divisions shall constitute an election precinct, and three judges shall be appointed for each of such precincts, one of whom shall act as clerk of said election. In the hearing of any such petition the board of county commissioners shall disregard any informality therein, and, in case it denies the same or dismisses it for any reason on account of the provisions of this article not having been complied with, which are the only reasons upon which it shall have a right to refuse or dismiss the same, the board shall state its reasons in writing therefor in detail, which shall be entered upon its record. In case these reasons are not well founded, upon proper application therefor, an order in the nature of mandamus shall issue out of the district court of said county, compelling the board to act in compliance with this article, which order shall be heard within twenty days from the date of its issuance and which twenty days shall be excluded from the forty days given the board of county commissioners to act upon said petition. The officers of such district shall consist of three directors, a secretary, and a treasurer.

Source: L. 05: p. 247, § 3. R.S. 08: § 3442. C.L. § 1962. CSA: C. 90, § 379. CRS 53: § 149-1-3. C.R.S. 1963: § 150-1-3.

ANNOTATION

Law reviews. For article, "Legal Classification of Special District Corporate Forms in Colorado", see 45 Den. L.J. 347 (1968).

This section affords opportunity to have land excluded from the district. Under the second exception of subsection (1), opportunity is afforded those who desire to claim the exemption in § 37-41-101 to appear before the board and have their lands excluded from the district upon proper showing. Wilder v. Bd. of Dirs. of S. Side Irrigation Dist., 55 Colo. 363, 135 P. 461 (1913).

This construction renders § 37-41-101 and this section harmonious and consistent. Wilder v. Bd. of Dirs. of S. Side Irrigation Dist., 55 Colo. 363, 135 P. 461 (1913).

An objection that lands will not be benefited must be made at time of organization. The general rule under such irrigation statutes is that the objection that lands will not be benefited by inclusion in an irrigation district must be made by landowners at the time the district is organized, when a hearing is afforded for that purpose, or it will be waived. Nile Irrigation Dist. v. Gas Sec. Co., 248 F. 861 (8th Cir. 1918).

For exclusion of land from district that is incapable of cultivation, see Nile Irrigation Dist. v. Gas Sec. Co., 248 F. 861 (8th Cir. 1918).

The action of the board in excluding land may be reviewed. Under this section, the action of the county commissioners in excluding lands, where there was an abuse of power but no fraud or bad faith, may be reviewed in a special proceeding by the board of directors of the irrigation district to determine the validity of the organization and bond issue. Ahern v. Bd. of Dirs. of High Line Irrigation Dist., 39 Colo. 409, 89 P. 963 (1907).

The action of the board in including land is res adjudicata. The inclusion by the county commissioners of all the land in question in the original determination of the boundaries of the district amounts to res adjudicata upon the question whether it could be thus included. Yellow Jacket Irrigation Dist. v. Pleasant Valley Ranch Co., 78 Colo. 543, 243 P. 635 (1926).