Colorado § 7-42-103 - Right-of-way.

§ 7-42-103. Right-of-way.

Any ditch, reservoir, or pipeline corporation formed under the provisions of law shall have the right-of-way over the line named in the articles of incorporation, and shall also have the right to run water from the stream, channel, or water source, whether natural or artificial, named in the articles through its ditch or pipeline, and store the same in any reservoir of the company when not needed for immediate use. The line proposed shall not interfere with any other ditch, pipeline, or reservoir having prior rights, except the right to cross by pipe or flume; nor shall the water of any stream, channel, or other water course, whether natural or artificial, be diverted from its original channel or source to the detriment of any person or persons having priority of right thereto, but this shall not be construed to prevent the appropriation and use of any water not utilized and applied to beneficial uses.

Source: G.L. § 275. G.S. § 309. L. 1891: p. 98, § 2. R.S. 08: § 990. C.L. § 2355. CSA: C. 41, § 143. CRS 53: § 31-14-3. C.R.S. 1963: § 31-14-3. L. 2008: Entire section amended, p. 22, § 12, effective August 5.

ANNOTATION

The priority of right mentioned in this section is acquired by priority of appropriation, and appropriations of water shall be subordinate to the use thereof by prior appropriators. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

And "detriment" at the time of diversion can only exist where the water diverted has been previously appropriated or used; if there has been no previous appropriation or use thereof, there can be no present injury or "detriment". Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

For the "use" and "detriment" mentioned in this section are a use existing at the time of the diversion and a detriment resulting from that use. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

And so future "use" and "detriment" are of no consequence. The general assembly did not intend to prohibit the diversion of water to the "detriment" of parties who might at some future period conclude to settle upon the stream, nor were they legislating with a view to preserving in such stream sufficient water for the "use" of individuals who might never come and, consequently, never have use for it. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

Appropriation not dependent upon locus of application. In the absence of legislation to the contrary, the right to water acquired by priority of appropriation is not in any way dependent upon the locus of its application to the beneficial use designed. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

Hence, water may be diverted from one watershed to another. Inasmuch as the doctrine of priority of right by priority of appropriation for agriculture is evoked by the imperative necessity for artificial irrigation of the soil, it would be an ungenerous and inequitable rule that would deprive one of its benefits simply because he has, by large expenditure of time and money, carried the water from one stream over an intervening watershed and cultivated land in the valley of another. Coffin v. Left Hand Ditch Co., 6 Colo. 443 (1882).

Section permits reservoir companies to store water already appropriated by others. That the purpose of this section is to permit reservoir corporations to store water of which it has not made an appropriation — water already appropriated by others, but not then needed for immediate use — is made clear by the concluding words of the section: "but this shall not be construed to prevent the appropriation and use of any water not theretofore utilized and applied to beneficial uses". People ex rel. Park Reservoir Co. v. Hinderlider, 98 Colo. 505, 57 P.2d 894 (1936) (concurring opinion).