Colorado § 37-85-108 - Bonus deemed an extortionate rate.

§ 37-85-108. Bonus deemed an extortionate rate.

(1) It shall not be lawful for any person owning or controlling, or claiming to own or control, any ditch, canal, or reservoir carrying or storing, or designed for the carrying or storing of, any water taken from any natural stream or lake within this state, to be furnished or delivered for compensation for irrigation, mining, milling, or domestic purposes, to persons not interested in such ownership or control, to demand, bargain for, accept, or receive from any person who may apply for water for any of the aforesaid purposes any money or other valuable thing whatsoever, or any promise or agreement therefor, directly or indirectly, as royalty, bonus, or premium prerequisite or condition precedent to the right or privilege of applying, or bargaining for, or procuring such water. Such water shall be furnished, carried, and delivered upon payment or tender of the charges fixed by the board of county commissioners of the proper county, as is provided by law.

(2) Any moneys, and every valuable thing, or consideration of whatsoever kind, which is so demanded, charged, bargained for, accepted, received, or retained, contrary to the provisions of this section, shall be deemed an additional and corrupt rate, charge, or consideration for the water intended to be furnished and delivered therefor, or because thereof, and wholly extortionate and illegal; and, when paid, delivered, or surrendered may be recovered by the party paying, delivering, or surrendering the same from the party to whom, or for whose use, the same has been paid, delivered, or surrendered, together with costs of suit, including reasonable fees of attorneys of plaintiff, by proper action in any court having jurisdiction.

Source: L. 1887: p. 308, § 1. R.S. 08: § 3271. C.L. § 1747. CSA: C. 90, § 145. CRS 53: § 147-8-7. C.R.S. 1963: § 148-8-7.

ANNOTATION

The evident purpose of this section was to protect against extortion persons who owned or were in possession of lands lying under such ditches, or who were lawfully entitled to receive water therefrom upon tender or payment of a fixed compensation, and to whom the ditch company is under a reciprocal obligation to furnish it. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903).

This and the following section are purely penal and make it an offense punishable by fine and imprisonment for any person or corporation to demand or accept any royalty, bonus or premium as a condition precedent to the right to procure water. Northern Colo. Irrigation Co. v. Richards, 22 Colo. 450, 45 P. 423 (1896).

The words of this section designating the persons, or class of persons, entitled to demand and receive water, are comprehensive enough to include all persons whomsoever, whether they own or are in possession of land lying under and susceptible of being irrigated from the ditch, or have any right to the use of water carried by it, or whether the lands are so remote or so situate with reference to the ditch as not be to susceptible of irrigation by that method. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903).

In order to bring a case within this section it is necessary that, inter alia, the information should show that the applicant for the water is of the class of persons entitled to invoke the protection of the section; that is, to demand of the ditch owner and receive from him the water upon compliance by him with the terms of the statute. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903).

In a prosecution under this section of the owner or person in control of a ditch, for refusing to supply water to a person entitled to the same, an information which charges the offense in the language of the statute is insufficient. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903).

It is also necessary that the pleading should designate the land for which the water was demanded as being so situate that the duty of the ditch to furnish water for its irrigation is made to appear and that the company might ascertain its location so as to deliver the water. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903).