Colorado § 37-84-121 - Penalty for refusal to deliver water.

§ 37-84-121. Penalty for refusal to deliver water.

Any superintendent or any person having charge of said ditch who willfully neglects or refuses to deliver water, as provided in sections 37-84-118 to 37-84-123, or any person who prevents or interferes with the proper delivery of water to the persons having the right thereto commits a petty offense. The money thus collected shall be paid into the general fund of the county in which the petty offense has been committed. The owners of such ditches shall be liable in damages to the persons deprived of the use of the water to which they were entitled as provided in sections 37-84-118 to 37-84-123.

Source: L. 1887: p. 305, § 4. R.S. 08: § 3257. C.L. § 1736. CSA: C. 90, § 134. CRS 53: § 147-7-22. C.R.S. 1963: § 148-7-21. L. 2021: Entire section amended, (SB 21-271), ch. 462, p. 3290, § 673, effective March 1, 2022.

ANNOTATION

Mandamus is the appropriate remedy to compel delivery. Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 (1884)(case decided prior to earliest source of this section); Wheeler v. Northern Colo. Irrigation Co., 10 Colo. 582, 17 P. 487 (1887); Townsend v. Fulton Irrigating Ditch Co., 17 Colo. 142, 29 P. 453 (1891); Combs v. Agricultural Ditch Co., 17 Colo. 146, 28 P. 966 (1892); People ex rel. Standart v. Farmers' High Line Canal & Reservoir Co., 25 Colo. 202, 54 P. 626 (1898).

While the right recognized is one conferred by statute, which the relator, upon the performance of certain conditions precedent, is entitled to enjoy, we are unable to perceive any reason why the same right, when conferred by contract, is not equally susceptible of enforcement in this manner, when clearly established, and the consequences of its denial are the same. People ex rel. Standart v. Farmers' High Line Canal & Reservoir Co., 25 Colo. 202, 54 P. 626 (1898).

It was held that the right acquired (or rather reserved) under a contract, was a perpetual right to have carried by the ditch, and furnished to him, sufficient water to irrigate the lands then owned by him and referred to and described in the schedule, and this right constituted an easement in the ditch, and such a right cannot be lost or abandoned by nonuser alone, short of the period for the limitation of actions to recover real property. People ex rel. Standart v. Farmers' High Line Canal & Reservoir Co., 25 Colo. 202, 54 P. 626 (1898).