§ 37-44-104 — Presentation and allowance of petitions

(1) (a) When such
petition is presented and it appears that the notice of presentation of said petition
has been given, as required by section 37-44-102, and that said petition has been
signed by the requisite number of petitioners, the district court in which said
petition is presented shall proceed to define the boundaries of such proposed
district, from the petition and from such application for the exclusion of lands from
and inclusions of lands therein as may be made in accordance with the provisions of
this article.

(b) Any owner of land included in the proposed district who is not a signer of
said petition may file with said court, on or before the day fixed by said notice for
the presentation of said petition, a protest against the inclusion of lands so owned
by him in the proposed district and petition for its exclusion. Said protest and
petition shall set out the facts and conditions by reason of which such owner seeks
to have his lands excluded from said proposed district. As many different owners as
desire to do so may join in the same petition.

(c) Owners of lands not included in said proposed district, in like manner,
may petition for the inclusion of their lands therein.

(2) On the day fixed for such hearing, the court shall proceed to examine the
petition for the formation of said district and shall determine whether the same is in
proper form and signed by the requisite number of petitioners. Certificates from
several county assessors as to the ownership of lands in said proposed district, if
the same appear upon the last assessment rolls of their respective counties, shall
be prima facie evidence of the ownership of the lands therein mentioned; but strict
proof of such ownership may be required by the court in regard to any lands, the
ownership of which is called in question by any interested parties.

(3) When it appears to the court that the required notice of such hearing has
been given, and that such petition is in proper form and signed by the required
number of landowners, the court shall proceed to hear the same and all
applications for inclusion and exclusion of lands theretofore filed with the clerk of
said court. In such hearing, the court may consider:

(a) The physical condition and location of any lands for the inclusion or
exclusion of which a petition has been filed;

(b) Its adaptability for agricultural use; and the sufficiency of any water
supply already available for its irrigation and the need for any additional supply;

(c) The location and condition of said land with reference to other lands to be
included in the proposed district;

(d) The cost and practicability of applying the proposed water supply to the
irrigation of said lands, and the necessity and practicability of flood protection for
said lands, if the same is sought to be included for flood protection purposes;

(e) The necessity and practicability of draining lands, either within or without
the boundaries of said district;

(f) In general, any other matters which will enable the court to determine the
question of whether such land should be included or excluded from said district.
Lands which will not be benefited by the works of any such proposed district or
lands already provided with adequate water supply for irrigation, where it is
proposed to irrigate such lands, in whole or in part, from the works of such
proposed district, or lands already provided with drainage, where it is proposed to
drain such lands, in whole or in part, by the works to be constructed by such
proposed district, shall not be included in said district or assessed for district
purposes, except upon the written consent of the owner thereof, including all
encumbrances, duly acknowledged in the manner provided by law for the
acknowledgment of deeds.

(4) If, in the judgment of the court, the matters to be heard in connection
with said petition can best be determined by reference of such matters, or any
thereof to a magistrate, reference thereof may be ordered by said court and such
order of reference shall expressly state what question shall be heard by said
magistrate, when and where such hearing will be held, and the date on which the
magistrate's report and findings shall be received and considered by the court. Said
court may adjourn such hearing from time to time. If the court finds and determines
that the organization of the proposed district is not in the best interests of the lands
proposed to be included therein, the petition shall be denied and the proceedings
dismissed. If the court finds that the formation of the district is meritorious and in
the best interests of the lands to be included therein, the court by final order duly
entered, shall define and establish the boundaries of such proposed district. When
the boundaries of any proposed district have been examined and defined, the
district court shall forthwith make an order allowing the prayer of said petitions
defining and establishing the boundaries and designating the name of such
proposed district.

(5) Thereupon said district court by order duly entered in said court shall call
an election of all qualified electors of said district to be held for the purpose of
determining whether such district shall be organized under provisions of this article
and by such order shall submit the names of two or more persons from each of the
five divisions of said district, who may be voted for as directors therein. For the
purposes of said election the court shall divide said district into five divisions as
nearly equal in size as may be practicable and shall provide that a qualified elector
of each of said five divisions shall be elected as a member of the board of directors
of said district by the qualified electors of the whole district. Each of said divisions
shall constitute an election precinct and three qualified electors shall be appointed
in each of said precincts, who shall act as judges to conduct the election in said
precinct, one of whom shall act as clerk of said election.

Legislative History

Source: L. 23: p. 485, � 2. L. 35: p. 951, � 2. CSA: C. 138, � 18. CRS 53: � 149-5-2. C.R.S. 1963: � 150-4-2. L. 91: (4) amended, p. 365, � 41, effective April 9.