Colorado § 7-42-108 - Shall keep ditch in repair.

§ 7-42-108. Shall keep ditch in repair.

Every ditch corporation formed under the provisions of law shall be required to keep its ditch in good condition so that the water shall not be allowed to escape from the same to the injury of any mining claim, road, ditch, or other property. If it is necessary to convey any ditch over, across, or above any lode or mining claim or to keep the water so conveyed therefrom, the corporation, if necessary to keep the water of the ditch out or from any claim, shall flume the ditch so far as necessary to protect the claim or property from the water of said ditch.

Source: G.L. § 278. G.S. § 312. R.S. 08: § 993. C.L. § 2360. CSA: C. 41, § 148. CRS 53: § 31-14-8. C.R.S. 1963: § 31-14-8. L. 2003: Entire section amended, p. 2206, § 15, effective July 1, 2004.

Cross references: For the duty to maintain ditch in good repair, see § 37-84-119; for the duty to keep embankments in repair, see §§ 37-84-101 and 37-84-107.

ANNOTATION

I. Duty to Keep Ditches in Good Condition.

II. Liability for Injury from Seepage.

I. DUTY TO KEEP DITCHES IN GOOD CONDITION.

This section imposes upon ditch companies the duty of keeping their ditches in "good condition". North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

The mutual ditch corporation must protect and preserve the interests of the shareholders by keeping the ditches, canals, reservoir, and other works in good repair, the expense of which is paid from the special assessment. Jacobucci v. District Court, 189 Colo. 380, 541 P.2d 667 (1975).

And this duty to prevent injury to adjacent property is emphasized by the requirement that flumes be used where necessary to protect property from injury by escaping water. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

Duty to maintain ditch applies to improvements such as trash racks that are incorporated into a ditch. E. Meadows Co., LLC v. Greeley Irrig. Co., 66 P.3d 214 (Colo. App. 2003).

The care required of a ditch owner in the construction and management of his ditch to avoid injuries to others is ordinary care such as a man of ordinary prudence and intelligence would employ under like circumstances to protect his property. City of Boulder v. Fowler, 11 Colo. 396, 18 P. 337 (1888).

It was within the discretion of the court to rule that expert testimony was not required to establish the standard of care applicable to defendant. Oliver v. Amity Mut. Irrigation Co., 994 P.2d 495 (Colo. App. 1999).

What is meant by "good condition" is specified in the clause "so that the water shall not be allowed to escape, etc.", to the injury of the property of others. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

And if water does escape to the injury of property, that fact itself is evidence that the ditch is not in the "good condition" which the statute requires. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

II. LIABILITY FOR INJURY FROM SEEPAGE.

This section does not make the owner of a ditch absolutely liable for damages, only for negligence. Platte & Denver Ditch Co. v. Anderson, 8 Colo. 131, 6 P. 515 (1884); City of Boulder v. Fowler, 11 Colo. 396, 18 P. 337 (1888); Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 P. 565 (1889); Greeley Irrigation Co. v. House, 14 Colo. 549, 24 P. 329 (1890); Grand Valley Irrigation Co. v. Pitzner, 14 Colo. App. 123, 59 P. 420 (1899); Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285, 110 P. 79 (1910); North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915); Bridgeford v. Colo. Fuel & Iron Co., 63 Colo. 372, 167 P. 963 (1917).

And where there is a failure on the part of ditch owners to comply with this section as to maintenance or use of an irrigating ditch whereby injury results, there can be no question but an injured party is entitled to recover. Greeley Irrigating Co. v. House, 14 Colo. 549, 24 P. 329 (1890).

The measure of damages to lands by seepage is the difference between its value immediately before and immediately after the injury, with the cost of restoration a proper consideration in determining value after injury. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).

Cause of action for seepage damage is within the six-year statute of limitations, with the statute running from the first appearance of seepage. Middlekamp v. Bessemer Irrigation Co., 46 Colo. 102, 103 P. 280 (1909).

Section 15 of article II, Colo. Const., does not apply to this section for this provision of the constitution is limited to proceedings under the eminent domain statute; it has not the effect to charge the owner of an irrigating ditch with the damages occasioned by seepage therefrom to the lands of another where negligence is shown. North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915).