Colorado § 37-82-102 - Priority of right to spring water.

§ 37-82-102. Priority of right to spring water.

All ditches constructed for the purpose of utilizing the waste, seepage, or spring waters of the state shall be governed by the same laws relating to priority of right as those ditches constructed for the purpose of utilizing the water of running streams; but the person upon whose land the seepage or spring waters first arise shall have the prior right to such waters if capable of being used upon his lands.

Source: L. 1889: p. 215, § 1. R.S. 08: § 3177. C.L. § 1637. CSA: C. 90, § 20. CRS 53: § 147-2-2. C.R.S. 1963: § 148-2-2.

ANNOTATION

I. General Consideration.

II. Right to Seepage or Spring Water.

III. Water Tributary to Natural Streams.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Foreign Water in Colorado — The City's Right to Recapture and Re-Use Its Transmountain Diversion", see 42 Den. L. Ctr. J. 116 (1965). For article, "A Review of Recent Activity in Colorado Water Law", see 47 Den. L.J. 181 (1970). For note, "A Survey of Colorado Water Law", see 47 Den. L.J. 226 (1970).

The validity of this section, so far as it relates to water which is in no sense tributary to a stream, has never been denied by the courts and is not now disputed. Colo. & Utah Coal Co. v. Walter, 75 Colo. 489, 226 P. 864 (1924).

This section does not apply to a ditch built to catch the surface drainage from the irrigation of adjoining lands. Burkart v. Meiberg, 37 Colo. 187, 86 P. 98 (1906).

Where defendants own and irrigate, from a natural stream, a tract of land, the natural slope of which is towards plaintiff's land, and plaintiff, by constructing a ditch upon her own land parallel with the common boundary line, has for many years intercepted the surface drainage from defendants' land and used it for irrigating her land, but defendants later constructed upon their own land a ditch parallel to plaintiff's ditch to intercept such surface drainage, carry it around plaintiff's land, and irrigate another tract owned by them, it was held, that plaintiff has not made a valid appropriation of such water as against defendants so as to prevent such action upon their part, and this is true although later defendants sell such adjoining tract of land, and continue to use such surface drainage, with the consent of the vendee, upon the tract of land below plaintiff. Burkart v. Meiberg, 37 Colo. 187, 86 P. 98 (1906).

The declaratory judgment act is applicable to a dispute over the right to the use of spring waters not tributary to any natural stream. Colo. & Utah Coal Co. v. Walter, 75 Colo. 489, 226 P. 864 (1924).

Applied in Archuleta v. Boulder & Weld County Ditch Co., 118 Colo. 43, 192 P.2d 891 (1948).

II. RIGHT TO SEEPAGE OR SPRING WATER.

There are no Colorado constitutional or statutory inhibitions against a person on whose lands spring water arises, which water is not tributary to and does not enter a natural stream, from using said water on his lands; on the contrary, this section expressly provides that the person on whose lands spring water first arises has the prior right to the use thereof. Cline v. Whitten, 144 Colo. 126, 355 P.2d 306 (1960).

The owner of land upon which is located a spring, the water of which he uses for irrigation and stock purposes, has the first and prior right to its use, it not being tributary to, or forming a part of any natural stream. Haver v. Matonock, 79 Colo. 194, 244 P. 914 (1926); Faden v. Hubbell, 93 Colo. 358, 28 P.2d 247 (1933).

The rights of senior appropriators cannot be injuriously affected by claims of junior claimants. In re Water Dist. No. 11, Water Div. No. 2, 178 Colo. 160, 496 P.2d 311 (1972).

Where seepage water, which plaintiff claims to have diverted, if left to itself, would never have reached a natural stream, any appropriation of the water which plaintiff's testator might have made was subject to the superior right of the owner of the land on which the same arose to apply such waters to a beneficial use on his premises. Lomas v. Webster, 109 Colo. 107, 122 P.2d 248 (1942).

Where all of the water of the stream is capable of being used upon the plaintiff's land and it has been used for irrigating his land and for stock water purposes for more than 20 years before defendants' alleged rights attached, under this section the plaintiff has a first and prior right to use of the water so far as he desires to use the same as against the defendants or other appropriators. Haver v. Matonock, 79 Colo. 194, 244 P. 914 (1926).

Where plaintiff has expressed a desire to make use of all the waters, the defendants have no right to use the same so long as the plaintiff desires to use them and applies them to a beneficial use. Haver v. Matonock, 79 Colo. 194, 244 P. 914 (1926).

A plaintiff who has right to water from one creek and defendant who has right to water from another, defendant has right to spring run-off water flowing near headwaters of both creeks which is naturally tributary to creek for which he has water rights. Grimes-Brooks Reservoir Co. v. Kayser, 111 Colo. 180, 502 P.2d 1104 (1972).

The appropriation thereof is not included in or controlled by a prior adjudication decree in the same district. Ironstone Ditch Co. v. Ashenfelter, 57 Colo. 31, 140 P. 177 (1914).

Where consumers constructed at their own labor and expense the feeder ditch by which the seepage water around the rim of Ash mesa, doing no one any good, was conveyed a mile up the river and emptied in the stream just above their headgate, this was an independent appropriation from extraneous sources, which they could make under this section. Ironstone Ditch Co. v. Ashenfelter, 57 Colo. 31, 140 P. 177 (1914).

Since consumers, by their efforts, lawfully contributed water to the stream which otherwise would not have reached it above their headgate, it was theirs, independent of the original adjudication decree, and because by their labor they contributed extraneous water to the normal flow, is no reason why they may not sell their priorities, and irrigate their land with the independent water. Ironstone Ditch Co. v. Ashenfelter, 57 Colo. 31, 140 P. 177 (1914).

A valid appropriation of water may be made from a canon, notwithstanding it is not a running stream and the water comes entirely from the rainfall in the surrounding hills. Denver, T. & F. W. R. R. v. Dotson, 20 Colo. 304, 38 P. 322 (1894).

The evidence established, by adverse possession, plaintiff's right to seepage water as against the owner of the land on which water arose although such water, if left to itself, would not reach or become part of a natural stream. Lomas v. Webster, 109 Colo. 107, 122 P.2d 248 (1942).

Where plaintiffs alleged that spring water arising on their land was nontributary to any natural stream, and that defendants have, and threaten to continue interfering therewith, the complaint asserted a statutory right to the use of such waters, and it was error to dismiss the complaint. Cline v. Whitten, 144 Colo. 126, 355 P.2d 306 (1960).

No one is authorized to interfere with the lawful exercise of a right to the use of spring water under this section. Cline v. Whitten, 144 Colo. 126, 355 P.2d 306 (1960).

An owner of water rights is entitled to injunctive relief against anyone who interferes with and threatens to continue to interfere with the exercise of such rights. Cline v. Whitten, 144 Colo. 126, 355 P.2d 306 (1960).

In an action by a prior appropriator of water from a stream to restrain a subsequent appropriator from diverting the tributary waters of the stream, if the defendant relies upon the defense that he has appropriated only percolating, drainage, and seepage waters which he has acquired a right to under this section, such defense must be presented by answer, and cannot be raised by demurrer. Ogilvy Irrigating & Land Co. v. Insinger, 19 Colo. App. 380, 75 P. 598 (1904).

One who claims a prior right under this section to appropriate water on the ground that it is seepage water diverted from a different stream and drainage and brought into the valley of the stream from which he seeks to appropriate it and first rises on his land has the burden of proof to show that it is such water and the quantity thereof. La Jara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905).

Evidence which fails to show how much of the water claimant collects in the bed of the stream comes from the seepage of water brought into the valley from a different stream and how much comes from other sources, and which fails to show how much of such seepage water first rises on claimant's lands, is insufficient to sustain a claim of priority of right to seepage water under this section. La Jara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905).

Courts will not take judicial notice that a spring has a certain location and is tributary to a natural stream, in the face of a positive declaration to the contrary in a complaint, which is not denied by the answer. Colo. & Utah Coal Co. v. Walter, 75 Colo. 489, 226 P. 864 (1924).

Where evapotranspiration is the only factor impeding the flow of seep and spring waters, such waters shall be considered tributary to the stream into which they flow and rights to such waters are not protected under this section. SRJ I Venture v. Smith Cattle, Inc., 820 P.2d 341 (Colo. 1991).

III. WATER TRIBUTARY TO NATURAL STREAMS.

The statute determining the right to use water coming from a spring on a landowner's property applies if, and only if, there first be a determination that the spring water in question is "nontributary" in nature. Ranson v. City of Boulder, 161 Colo. 478, 424 P.2d 122 (1967).

This section is applicable only to appropriations of waste, seepage, and spring waters before they reach the channel or bed of a natural stream, whether by natural surface flow, by percolation or by being artificially turned into the same, but after waste waters reach the stream, unless there is then an intention by the owner to reclaim them, they become part of its volume, and inure to the benefit of the appropriators of its waters, to be enjoyed in accordance with their numerical priorities. La Jara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905); Cline v. Whitten, 150 Colo. 179, 372 P.2d 145 (1962).

There is no difference in principle between waste water thus added to a natural stream and water which, by natural law, so finds its way into such channel by percolation, surface, or subterranean flow. La Jara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905).

This section does not apply to seepage waters which rise or come to the surface for the first time in the bed or channel of a natural stream. La Jara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905).

Such waters become part of the volume of such natural stream, inure to the benefit of the appropriators of the water of the stream in the numerical order of their appropriations, and the owner of the land through which the stream flows at the point where such waters rise therein has no priority of right thereto. La Jara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905).

This section does not apply to the water of a spring which constitutes the source of one of the branches of a natural stream the water of which had been appropriated prior to the enactment of the law. Clark v. Ashley, 34 Colo. 285, 82 P. 588 (1905).

Where defendants were awarded priorities to the waters of a certain stream, superior to those of the plaintiff's, and subsequently, by seepage from defendants' ditch, water appeared in a certain gulch tributary to the stream in question, plaintiff's attempted appropriation of these waters conferred no right, the seepage being still part of the waters of the stream. Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503 (1917).

In Colorado, flowing water is presumed to find its way to a stream and therefore to be tributary in nature, and the burden of proving otherwise rests upon the party claiming that such water is not tributary. Ranson v. City of Boulder, 161 Colo. 478, 424 P.2d 122 (1967).

Seepage and percolation waters belong to the river and since this is true they belong to the people of the state. Comstock v. Ramsay, 55 Colo. 244, 133 P. 1107 (1913); Durkee Ditch Co. v. Means, 63 Colo. 6, 164 P. 503 (1917); Trowell Land & Irrigation Co. v. Bijou Irrigation Dist., 65 Colo. 202, 176 P. 292 (1918); Rio Grande Reservoir & Ditch Co v. Wagon Wheel Gap Imp. Co., 68 Colo. 437, 191 P. 129 (1920); Ft. Morgan Reservoir & Irrigation Co. v. McCune, 71 Colo. 256, 206 P. 393 (1922); Nevius v. Smith, 86 Colo. 178, 279 P. 44 (1929); Cline v. Whitten, 150 Colo. 179, 372 P.2d 145 (1962).

This rule is limited strictly to such waters as "belong to the stream". Nevius v. Smith, 86 Colo. 178, 279 P. 44 (1929).

An appropriator of spring and seepage water has the right to its use superior to that of the owner of the land upon which the water arises, when such water would ultimately reach, and become a part of, a natural stream. Nevius v. Smith, 86 Colo. 178, 279 P. 44 (1929); Lomas v. Webster 109 Colo. 107, 122 P.2d 248 (1942).

Where a party makes a valid appropriation of spring and seepage water arising on the land of another and which would eventually reach, and become a part of, a natural stream, the owner of the land upon which the water develops cannot deprive him of the acquired right without compensation. Nevius v. Smith, 86 Colo. 178, 279 P. 44 (1929).

Whatever may be the right of the owner of the lands upon which seepage or spring waters first arise, as against a prior appropriator where such waters are not tributary to a stream, the law is well settled that waters which are tributary to a stream belong to the stream and are subject to appropriation for beneficial use the same as other waters of the stream. De Haas v. Benesch, 116 Colo. 344, 181 P.2d 453 (1947).

Subject to prior appropriations, underground waters supplying a natural stream are open to appropriation like surface waters, because they belong to the river. McClellan v. Hurdle, 3 Colo. App. 430, 33 P. 280 (1893); Medano Ditch Co. v. Adams, 29 Colo. 317, 68 P. 431 (1902); LaJara Creamery & Live Stock Ass'n v. Hansen, 35 Colo. 105, 83 P. 644 (1905); Nevius v. Smith, 86 Colo. 178, 279 P. 44 (1929); Faden v. Hubbell, 93 Colo. 358, 28 P.2d 247 (1933).