CO Code § 37-85-106 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 85 - Charge for Delivery of Water|§ 37-85-106. Hearing - Testimony - Maximum Rates

  The board of county commissioners may adjourn or postpone any hearing from time to time as may be found necessary or for the convenience of parties or of public business. It shall hear and examine all legal testimony or proofs offered by any party interested concerning the original cost and present value of works and structure of such ditch, canal, conduit, or reservoir, the cost and expense of maintaining and operating the same, and all matters which may affect the establishing of a reasonable maximum rate of compensation for water to be furnished and delivered therefrom. It may issue subpoenas for witnesses, which subpoenas shall be served by the sheriff of the county, who shall receive the lawful fees for all such service; and said board may also issue a subpoena for the production of all books and papers required for evidence before it.    Upon hearing and considering all the evidence and facts and matters involved in the case, said board of county commissioners shall enter an order describing the ditch, canal, conduit, reservoir, or other work in question with sufficient certainty and fixing a just and reasonable maximum rate of compensation for water to be thereafter delivered from such ditch or other work within the county in which such board of county commissioners acts, and such rate shall not be changed within two years from the time when it is so fixed, unless upon good cause shown. The district court of the proper county in case of refusal to obey the subpoena of the board of county commissioners may compel obedience thereto or punish for refusal to obey, after hearing, as in cases of attachment, for contempt of such district court.     History. Source: L. 1887: P. 293, § 4. R.S. 08: § 3268. C.L. § 1745. CSA: C. 90, § 143. CRS 53: § 147-8-5. C.R.S. 1963: § 148-8-5. History. Source: L. 1887: P. 293, § 4. R.S. 08: § 3268. C.L. § 1745. CSA: C. 90, § 143. CRS 53: § 147-8-5. C.R.S. 1963: § 148-8-5.    ANNOTATION   In conformity with § 8 of art. XVI, Colo. Const., the general assembly enacted this and the three preceding sections, and herein provided a full procedure for establishing a reasonable maximum water rate by the board of commissioners. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).   This and the three preceding sections contain provisions which specifically confer upon the county commissioners the power to fix the maximum rate of compensation for the carriage of water to be used for irrigating agricultural lands. Northern Colo. Irrigation Co. v. Bd. of Comm'rs, 95 Colo. 555 , 38 P.2d 889 (1934).   Under these sections the important duty of fixing a maximum rate is vested exclusively in the boards of county commissioners of the several counties. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).   The landowner is protected from exorbitant charges for carriage by the provisions of this section authorizing the board of county commissioners to fix reasonable rates for carriage, and the company is protected from having its investments confiscated by its right to have the courts enjoin the enforcement of a rate that will not yield an income at least sufficient to meet operation and maintenance costs and an additional income such as will provide a return on its investment which is reasonable in view of the nature, character and extent of the benefits, if any, that accrue to the users. Bd. of County Comm'rs v. Rocky Mt. Water Co., 102 Colo. 351 , 79 P.2d 373 (1938).   On the question of what is a reasonable rate for the carriage of water, profitable use to the landowner is immaterial in determining the rate base, but the extent to which it has been profitable is a factor to be considered in fixing what is a reasonable return on the rate base to which the carrier is entitled. Bd. of County Comm'rs v. Rocky Mt. Water Co., 102 Colo. 351 ,79 P.2d 373 (1938).   It will be presumed, the contrary not appearing, that in prescribing a rate the board acted solely upon the evidence produced before it, without any mixture of improper motive, and that the evidence was sufficient to support the order. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).   Where a judgment had been entered declaring a rate of charge prescribed by the county commissioners unreasonable and confiscatory, and a little more than three months thereafter, the board, upon a second hearing, established the same rate, the court declined to indulge in presumptions in support of the second order. Montezuma Water & Land Co. v. McCracken, 62 Colo. 394 , 163 P. 286 (1917).   The maximum reasonable rates fixed by the board of county commissioners are subject to judicial control. Montezuma Water & Land Co. v. McCracken, 62 Colo. 394 , 163 P. 286 (1917).   A decree of the district court vacated an order of the county commissioners prescribing a rate of charge, and enjoined the board from enforcing or attempting to enforce the rate so prescribed. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).   Where the county commissioners fixed a rate, and on the application of a water company refused to change the same, and, while in session, each member of the board stated that he would not consider another petition for a modification thereof, the water company is not precluded from bringing an action to restrain the enforcement of the rate fixed and to obtain the fixing of a different rate, on the ground that it had not, previous to bringing the action and after the expiration of two years from the date of fixing the rate, petitioned the board for a new rate. Bd. of Comm'rs v. Montezuma Water & Land Co., 39 Colo. 166 , 89 P. 794 (1931).   Where the rate fixed by the board of county commissioners for the use of water is such that the owner of the ditch can make no profit therefrom, its enforcement may properly be enjoined, since the term ”reasonable compensation“, as used in this section implies that something must be given for the service. Bd. of Comm'rs v. Montezuma Water & Land Co., 39 Colo. 166 , 89 P. 794 (1931).   Although the county commissioners have the power to fix a reasonable maximum rate of compensation for water to be delivered from irrigating ditches, this does not give to them the authority to confiscate the property of the ditch owner, neither does it give them the authority to compel the ditch owner to carry the water without compensation. Bd. of Comm'rs v. Montezuma Water & Land Co., 39 Colo. 166 , 89 P. 794 (1931).   Where, upon a second petition, and due notice given to all concerned, the county commissioners, after full hearing, prescribed the same rate set down in the previous order so vacated, it was held that the second order of the board was not to be regarded as a violation of the injunction, and, not being assailed by any direct proceeding, and no lack of jurisdiction or excess of authority being shown, the rate prescribed thereby became the lawful maximum rate binding all concerned. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).   Where a rate of charge fixed by the board has been judicially declared unreasonable and confiscatory, the board will not be permitted to evade the effect of such judgment by declaring and establishing the same rate of charge, upon the same evidence. Montezuma Water & Land Co. v. McCracken, 62 Colo. 394 , 163 P. 286 (1917).   Where the only thing enjoined in water company's suit was the enforcement of an admittedly erroneous rate, and where such items as value of structures, equipment, and operating expense, are or may be variable, and since the board may at any time readjust this rate, the supreme court found nothing to review. Bd. of Comm'rs v. Rocky Mt. Water Co., 106 Colo. 276 , 103 P.2d 686 (1940).   The board is not charged with the duty of seeing that the prescribed rate is observed by the carriers of water. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).   The board can act only on the petition of an interested party. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).   No appeal has been provided from the board's decision in fixing such maximum rate, and for that reason we think, when such rate is once fixed by the board in accordance with this act, the general assembly intended it should be observed and obeyed by all persons or corporations affected by it until annulled by some proper court. McCracken v. Montezuma Water & Land Co., 25 Colo. App. 280, 137 P. 903 (1914).