Colorado § 37-86-107 - Owner of ditch must permit enlargement.

§ 37-86-107. Owner of ditch must permit enlargement.

No persons having constructed a private ditch for the purposes and in the manner provided in section 37-86-106 shall prohibit or prevent any other person from enlarging or using any ditch by them constructed in common with them, upon payment to them of a reasonable proportion of the cost of construction of said ditch.

Source: L. 1881: p. 164, § 3. G.S. § 1718. R.S. 08: § 3172. C.L. § 1628. CSA: C. 90, § 11. CRS 53: § 147-3-6. C.R.S. 1963: § 148-3-6.

ANNOTATION

Law reviews. For article, "Revision of Water and Irrigation Statutes", see 31 Dicta 29 (1954).

This section is, in most respects, a complement of § 37-86-105. Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883).

This section is unconstitutional insofar as it attempts to limit or direct the compensation to be paid for the property. Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883).

In an action to condemn a right-of-way for an irrigating ditch to convey the waste and surplus water from the end of a ditch on defendant's land, this section providing for enlarging ditches has no application. Schneider v. Schneider, 36 Colo. 518, 86 P. 347 (1906).

A ditch which is used for the carriage of water for hire to the people generally is quasi-public, and a city cannot, by condemnation proceedings, acquire a right to enlarge and use it in conjunction with the ditch company. Junction Creek & N. D. D. & I. Ditch Co. v. City of Durango, 21 Colo. 194, 40 P. 356 (1895).

The ditches subject to enlargement and joint use under this section are strictly private ditches, and such as are used to convey water across the land of another to irrigate the adjoining land of the person or corporation owning the ditch, and this is clearly manifest by the language of the act, and also from its object and purpose. Junction Creek & N. D. D. & I. Ditch Co. v. City of Durango, 21 Colo. 194, 40 P. 356 (1895).

The whole act of 1881 must be considered in determining the meaning of the term "private ditch", as used in this section. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892).

Prior to its enactment, the right to condemn the right-of-way for separate ditches through the land of another for the purpose of irrigating the land below and adjoining, by persons owning the same, was practically unlimited; and to limit this right and protect the servient estate from the burden of unnecessary ditches, the act in question was passed. Junction Creek & N. D. D. & I. Ditch Co. v. City of Durango, 21 Colo. 194, 40 P. 356 (1895).

The statutory right to enlarge 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) (modifying Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883)).

There are good reasons for requiring others to enlarge a ditch constructed upon such a route whenever practicable, if it afterwards becomes necessary for them to convey water through the same lands; but a farmer in distributing water upon his own lands may have but little regard to the grade of his small ditches or laterals, and this section does not contemplate the enlargement by others of such ditches, and thus not only burdening his lands with an easement, but compelling him against his will to accept such parties as cotenants with him. Downing v. More, 12 Colo. 316, 20 P. 766 (1888).

The right to enlarge and use the ditch of another already constructed will be enforced in the same manner, and under the same law, as the right to take or damage any other kind of private property. Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883); Downing v. More, 12 Colo. 316, 20 P. 766 (1888).

If a company can make arrangement with the owner of a canal whereby it may put in the canal a headgate and use the canal itself as a conduit for carrying the water directly from the stream to such headgate and thence by its own feeder carry the water of the stream to its reservoir for storage purposes is a matter of contract between the two, and such a right might be acquired by condemnation in a proper case under this section and by contract. Water Supply & Storage Co. v. Larimer & Weld Irrigation Co., 24 Colo. 322, 51 P. 496 (1897).

Where the El Moro company consented that the Chicosa company should enlarge the ditch, should share in its cost and maintenance as thus enlarged, waived any right to other compensation, and agreed that the Chicosa company should enjoy so much of the El Moro ditch as was necessary for these purposes, their right under these circumstances is clearly an easement, and as we must conclude according to our present advices, not an easement revocable at the option of the El Moro company, but a continuing one, of which the Chicosa company could enforce the quiet enjoyment. Chicosa Irrigating Ditch Co. v. El Moro Ditch Co., 10 Colo. App. 276, 50 P. 731 (1897).

A ditch owned by an incorporated company is not exempt from this section. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892).

This section is wholly inapplicable where both plaintiffs and defendants take the position that a defendant's head ditch cannot be used for carrying waters to defendant's lands. Mott v. Coleman, 132 Colo. 306, 287 P.2d 655 (1955).