Colorado § 37-86-103 - Extent of right-of-way.

§ 37-86-103. Extent of right-of-way.

Such right-of-way shall extend only to a ditch, dike, cutting, pipeline, or other structure sufficient for the purpose required. Unless inconsistent with the terms upon which the right-of-way was created, and not to be construed as a limit on any other rights in a ditch or ditch right-of-way that have been created or arisen by law, a ditch right-of-way includes the right to construct, operate, clean, maintain, repair, and replace the ditch and appurtenant structures, to improve the efficiency of the ditch, including by lining or piping the ditch, and to enter onto the burdened property for such purposes, with access to the ditch and ditch banks, as the exigencies then existing may require, for all reasonable and necessary purposes related to the ditch.

Source: R.S. p. 363, § 3. G.L. § 1374. G.S. § 1713. R.S. 08: § 3168. C.L. § 1624. CSA: C. 90, § 7. CRS 53: § 147-3-2. C.R.S. 1963: § 148-3-2. L. 69: p. 1219, § 5. L. 2019: Entire section amended, (HB 19-1082), ch. 54, p. 190, § 1, effective August 2.

ANNOTATION

Law reviews. For note, "A Survey of Colorado Water Law", see 47 Den. L.J. 226 (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).

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).

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).

The owner of the carrying ditch in making the diversion from the natural stream acts solely as the agent or trustee for him who applies the water to a beneficial use, gets no title in or right to the use of the water and has no property in it subject to disposal, and he who applies the water thus diverted to beneficial use acquires a property right in the use of the water applied which he, and he only, can sell, dispose of, and convey by deed separate and apart from the land to which it has been applied or with the land to which it has been applied. Pioneer Irrigation Co. v. Bd. of County Comm'rs, 236 F. 790 (D. Colo. 1916).

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).

The beneficiary of a ditch right-of-way has a right to pipe the ditch only when doing so would improve the ditch's efficiency. Baker v. Safadi-Chamberlain, 2025 COA 63, 575 P.3d 458.