Colorado § 37-84-101 - Maintenance of embankments and tail ditch.

§ 37-84-101. Maintenance of embankments and tail ditch.

The owners of any ditch for irrigation or other purposes shall carefully maintain the embankments thereof so that the waters of such ditch may not flood or damage the premises of others, and shall make a tail ditch so as to return the water in such ditch with as little waste as possible into the stream from which it was taken.

Source: R.S. p. 364, § 7. L. 1872: p. 144, § 1. G.L. § 1378. G.S. § 1728. R.S. 08: § 3233. C.L. § 1713. CSA: C. 90, § 111. CRS 53: § 147-7-1. C.R.S. 1963: § 148-7-1.

Cross references: For requirement of keeping ditch in repair, see § 7-42-108.

ANNOTATION

This section imposes a duty upon the owners and every ditch company is required to keep its ditch in such good repair and condition that the water of the same cannot readily and easily escape therefrom to the injury of any property; and especially such owners must not allow or permit the water to escape therefrom to the damage of other property. Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890).

Defendants are liable for any injury to the plaintiff's property caused by overflow of the waters entering the ditch, resulting either directly or indirectly from the negligence of defendants in keeping the same in good repair, or in the manner of its use while under their control, they are responsible in damages. Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890).

Where owners of an irrigating ditch recklessly attempted to convey a volume of water through it far beyond the reasonable capacity of the ditch to safely carry, and in so doing knowingly caused the ditch to overflow its banks, thereby flooding the land of an adjacent proprietor, and destroying his fruit trees and vines growing thereon, they became liable to respond in damages under this section. Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890).

Owner is not absolutely liable for damages. Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131, 6 P. 515 (1884); City of Boulder v. Fowler, 11 Colo. 396, 18 P. 337 (1888); Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 P. 565 (1889); Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890); Grand Valley Irrigation Co. v. Pitzer, 14 Colo. App. 123, 59 P. 420 (1899); Middlekamp v. Bessemer Irrigating Co., 46 Colo. 102, 103 P. 280 (1909). Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285, 110 P. 79 (1910); North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

The same rule has been announced in other jurisdictions. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

The owner of a ditch is not liable for damages as the result of water seeping therefrom, unless it appears that such seepage was caused by the negligent construction or operation of the ditch. Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131, 6 P. 515 (1884); City of Boulder v. Fowler, 11 Colo. 396, 18 P. 337 (1888); Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 P. 565 (1889); Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890); Middlekamp v. Bessemer Irrigating Co., 46 Colo. 102, 103 P. 280 (1909); Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285, 110 P. 79 (1910); North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915); Bridgeford v. Colo. Fuel & Iron Co., 63 Colo. 372, 167 P. 963 (1917).

The measure of damage to lands by seepage is the difference between its value, immediately before and immediately after the injury. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

The question of such damages is not affected by § 15 of art. II, Colo. Const. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

A defense based on unavoidable accident is not available where it already appears that the gross carelessness and negligence of the defendants contributed to the injury complained of. Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890).

In an action under this section and § 37-84-107 for an injury to plaintiff's premises by seepage from defendant's ditch, attributed to negligence in the construction, maintenance and operation thereof, an instruction that defendant was "under duty to keep its ditch in good condition, maintain its embankments in good repair and prevent water wasting therefrom", was approved. Beaver Creek Sch. Land Ditch Co. v. Elling, 27 Colo. App. 252, 148 P. 273 (1915).

Where the plaintiffs had sold to defendants a right-of-way through their premises, and afterward brought an action to recover for injuries alleged to have been caused by the negligent and improper manner in which defendants operated the ditch, evidence was admissible to show the extent of the damage to plaintiffs' adjoining land occasioned by defendants' failure to keep the ditch in repair, but not to show the value of the land with and without the ditch. Old v. Keener, 22 Colo. 6, 43 P. 127 (1895).

Evidence of damage from seepage held sufficient to sustain a recovery by plaintiff. Beaver Creek Sch. Land Ditch Co. v. Elling, 27 Colo. App. 252, 148 P. 273 (1915).