Colorado § 37-86-102 - Right-of-way through other lands.

§ 37-86-102. Right-of-way through other lands.

Any person owning a water right or conditional water right shall be entitled to a right-of-way through the lands which lie between the point of diversion and point of use or proposed use for the purpose of transporting water for beneficial use in accordance with said water right or conditional water right.

Source: R.S. p. 363, § 2. G.L. § 1373. G.S. § 1712. R.S. 08: § 3167. C.L. § 1623. CSA: C. 90, § 6. CRS 53: § 147-3-1. C.R.S. 1963: § 148-3-1. L. 69: p. 1219, § 4.

ANNOTATION

Law reviews. For article, "A Review of Recent Activity in Colorado Water Law", see 47 Den. L.J. 181 (1970). For comment, "Bubb v. Christensen: The Rights of the Private Landowner Yield to the Rights of the Water Appropriator Under the Colorado Doctrine", see 58 Den. L.J. 825 (1981). For article, "Unilateral Ditch Modification", see 38 Colo. Law. 37 (Feb. 2009).

Ultimate sources of the right of condemnation are § 14 of art. II, and § 7 of art. XVI, Colo. Const. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

It is established in this state that where a ditch owner is permitted, without interference, to construct an irrigating ditch over the land of another, and the ditch is put in use, a right-of-way is thereby acquired, and the necessity for condemning, to obtain possession, is obviated. Leonard v. Buerger, 130 Colo. 497, 276 P.2d 986 (1954).

This section was enacted by the first legislative assembly. Yunker v. Nichols, 1 Colo. 551 (1872).

It gives a private person the right to invoke the power of eminent domain for a private use. Ortiz v. Hansen, 35 Colo. 100, 83 P. 964 (1905).

Under this section, if any person who owns farming land which has not sufficient length of area exposed to a stream to obtain a sufficient fall of water to irrigate it, or where his land is too far removed from the stream to build a ditch directly therefrom to the lands wholly upon the same, take and condemn lands belonging to others for a right-of-way for a ditch to divert and carry water from the stream to irrigate his own lands. Ortiz v. Hansen, 35 Colo. 100, 83 P. 964 (1905).

Owner of conditional water right may condemn rights-of-way over the lands of others for the purpose of transporting water for beneficial use. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

Condemnation right not dependent on supply source. The right of condemnation for purposes of obtaining a right-of-way to the point of diversion of the water right is not dependent upon whether the source of supply is characterized as a well or a spring. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

A purely private party may have a right-of-way condemned for a ditch through the lands of another to convey water to his lands for domestic, agricultural or mining purposes. Downing v. More, 12 Colo. 316, 20 P. 766 (1888).

A right to convey water over the land of another for the purpose of irrigating one's land may be acquired under this section and such right needs not a grant from the owner of the servient estate to support it. Yunker v. Nichols, 1 Colo. 551 (1872).

Right extends to bed of ditch and sufficient ground on either side. The right of an owner with respect to a ditch excavated over the private land of another extends to the bed of the ditch and sufficient ground on either side. Shrull v. Rapasardi, 33 Colo. App. 148, 517 P.2d 860 (1973).

Such lands were formerly held in subordination to the dominant rights of others, who must necessarily pass over them to obtain a supply of water to irrigate their own lands, but since the adoption of the constitution, the taking of private property for private use (which this amounts to) is prohibited unless compensation be made, and the general assembly has provided proceedings for this purpose. Yunker v. Nichols, 1 Colo. 551 (1872); Schilling v. Rominger, 4 Colo. 100 (1878); Branagan v. Dulaney, 8 Colo. 408, 8 P. 669 (1885); Stewart v. Stevens, 10 Colo. 440, 15 P. 786 (1887).

When water transportation facility constructed without acquiring easement, landowner limited to temporary relief. When a facility for the transportation of water is constructed or utilized by one having the right of eminent domain, without prior acquisition of an easement, the remedy of the landowner is limited to temporary relief, pending conduct of the eminent domain proceedings by the owners of the water right. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).

This right may also be acquired by contract between the parties, or by the gratuitous license of the landowner, and in either case, after entry and expenditure of money, the right is irrevocable, because after entry under a license and construction of the ditch, the license operates as an irrevocable grant. De Graffenried v. Savage, 9 Colo. App. 131, 47 P. 902 (1897); Boglino v. Giorgetta, 20 Colo. App. 338, 78 P. 612 (1904).

There is no law which forbids one to grant permission to his neighbor to dig an irrigation ditch across his land without first purchasing a right-of-way and getting a deed to it, and when, under such circumstances, the ditch actually is excavated and put into use without objection, or by approval, the owner of land traversed thereby may not thereafter withdraw his consent, deny the right of maintenance, or destroy the ditch, and such consent need not even be in writing, and where the ditch has been in existence for any appreciable time, consent to its original construction is presumed. Leonard v. Buerger, 130 Colo. 497, 276 P.2d 986 (1954); Shrull v. Rapasardi, 33 Colo. App. 148, 517 P.2d 860 (1973).

This section applies only to such ditches as have been constructed through lands for the benefit of adjoining proprietors, and not to those constructed by the owner of land to water his own land exclusively. Downing v. More, 12 Colo. 316, 20 P. 766 (1888).

This section and the following section have no application to a proceeding to condemn a right-of-way for a ditch to carry waste and surplus water from the end of a ditch on another's land. Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906).

Right to spill waste water is part of right to transport water where essential to the maintenance of the ditch. Hitti v. Montezuma Valley Irrigation Co., 42 Colo. App. 194, 599 P.2d 918 (1979).

It does not confer the rights given upon persons other than those described in the statute, or to enable them to exercise the right under conditions other than those mentioned. Junction Creek & N. D. D. & I. Ditch Co. v. City of Durango, 21 Colo. 194, 40 P. 356 (1895).

The right of one person to conduct water over the land of another is an interest in real estate, which must be conveyed by deed in compliance with the terms of the statute of frauds, and in countries where the humidity of the climate is sufficient to supply moisture to plants, there can be no reason for distinguishing this from other easements in the soil, and therefore the law of England, and of most of our states on this point will be found in the general rules relating to real property. Yunker v. Nichols, 1 Colo. 551 (1872).

It is clear under all the authorities that appellant could not resort to the summary remedy of obstructing or destroying the ditch or preventing the parties from entering upon the line of the ditch to operate it. De Graffenried v. Savage, 9 Colo. App. 131, 47 P. 902 (1897).