Colorado § 37-86-111 - Head of ditch may be relocated.

§ 37-86-111. Head of ditch may be relocated.

(1) In case the channel of a natural stream becomes so cut out, lowered, turned aside, or otherwise changed from any cause as to prevent any ditch, canal, or feeder of any reservoir from receiving the proper inflow of water to which it may be entitled from the natural stream, the owners of the ditch, canal, or feeder have the right to relocate the head of the ditch, canal, or feeder to such distance to the stream that supplies it as may be necessary for securing a sufficient flow of water into the ditch, canal, or feeder. For that purpose they have the same right to maintain proceedings for condemnation of a right-of-way for the relocation as in the case of constructing a new ditch. The priority of right to take water from a stream through such ditch, canal, or feeder remains unaffected in any respect by reason of the relocation; but the relocation must not physically interfere with the complete use or enjoyment of any absolute or decreed conditional water right.

(2) If an owner of a water right relocates a surface diversion structure to a new surface point of diversion in compliance with subsection (1) of this section, the owner does not need to file a change of water right application for the new surface point of diversion.

Source: L. 1881: p. 161, § 1. G.S. § 1719. R.S. 08: § 3173. C.L. § 1633. CSA: C. 90, § 16. CRS 53: § 147-3-11. C.R.S. 1963: § 148-3-11. L. 2014: Entire section amended, (HB 14-1005), ch. 198, p. 725, § 1, effective May 15.

ANNOTATION

Rights to the use of water which depend for their existence upon a compliance with the requirements of the so-called map and statement statute, which has been held unconstitutional, cannot be enforced as against superior rights, notwithstanding the original appropriators of water relied upon the validity of the statute, and the rights of other appropriators of water in the same district have been adjudicated upon the assumption that the statute was valid. Great Plains Water Co. v. Lamar Canal Co., 31 Colo. 96, 71 P. 1119 (1903).

Change of point of diversion must be without harm to others. Although the point of diversion may be changed in some instances, the statute provides an exclusive remedy, and the change must be accomplished without harm to other appropriators. Harvey v. Davis, 655 P.2d 418 (Colo. 1982).

It is just as accurate to say of the extension of the right-of-way for a ditch that it has been made or enlarged, as to say that a ditch has been made or enlarged; for, as will be seen from this section, extending the right-of-way for a ditch by carrying the headgate farther up the stream necessarily involves the making of a ditch or other conduit for carrying water, that is, the extension is made by making a ditch, etc., and such extension may subsequently involve the enlarging of its capacity. Lamar Canal Co. v. Amity Land & Irrigation Co., 26 Colo. 370, 58 P. 600 (1899).