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Water Rights Resources

Water law is complex, nuanced, and can be difficult to understand. We delve into common water law concepts and provide tutorials that describe how it use publicly available tools to learn more about water rights. To this end, below are a series of articles that are designed to help parties develop a general understanding of some of the basic principles of water law. The information provided below is for educational purposes only and if you have specific questions about your water rights, please contact the attorneys at Nazarenus Stack & Wombacher for legal advice. Use of this information is explicitly subject the website disclaimer available at this link https://www.nswlaw.com/disclaimer

Ditch Easements

Ditch and pipeline easements are a major source of water rights disputes.  While the law in this area is well-settled, many people are unaware of the rules which leads to conflict.

The importance of ditch easements has been recognized in Colorado for over a century.  “It may be said, that all lands are held in subordination to the dominant rights of others, who must necessarily pass over them to obtain a supply of water to irrigate their own lands.” Yunker v. Nichols, 1 Colo. 551, 555 (1872). Access to water is such an important western issue that the Colorado Constitution explicitly provides a private right of condemnation to facilitate the transportation of water within the state. Colo. Const., art. XVI, § 7; C.R.S. § 37-86-104.

Colorado courts have interpreted the scope of ditch easements to include “whatever is reasonably necessary to permit full use and enjoyment of the easement including the exercise of rights of ingress and egress for maintenance, operation, and repair.” Osborn & Caywood Ditch Co. v. Green, 673 P.2d 380, 383 (Colo. App. 1983).  The only major limit is that improvements to a ditch must not “unreasonably increase the burden on the servient estate” and “must have been reasonably foreseeable at the time the easement was established.” Riddell v. Ewell, 929 P.2d 30, 31 (Colo. App. 1996).

Owners of land that is crossed by ditches have little recourse against ditch easement holders who operate and maintain their ditches in a reasonable manner. In fact, such land owners are prohibited from damaging the ditch or unreasonably inhibiting the ditch’s owner from maintaining it. Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1232 (Colo. 2001). Further, the owner of the land burdened by an easement may not move or alter the easement without either the consent of the ditch owner or a determination from a court that any proposed changes will not “significantly lessen the utility of the easement, increase the burdens on the owner of the easement, or frustrate the purpose for which the easement was created.” Id. at 1231.

Many ditch easements in Colorado are not documented by an express easement that is recorded at the clerk and recorder’s office.  Rather, most ditch easements exist as “implied” easements that may not be documented by any single document.  Implied easements arise as a result of preexisting use or out of necessity.  An easement implied from prior use is created when: 1) the servient and dominant estates were once under common ownership; 2) the rights alleged were exercised prior to the severance of the estate; 3) the use was not merely temporary; 4) the continuation of this use was reasonably necessary to the enjoyment of the parcel; and 5) a contrary intention is neither expressed nor implied.  Easements of necessity arise when: (1) original ownership of entire tract was held by a single grantor prior to division; (2) necessity existed at the time of severance; and (3) the necessity for the right of way is great. 

If you own or plan to purchase a property that is crossed by a ditch owned by a neighbor, please consult one of our attorneys before making any alterations to the ditch.  Likewise, ditch owners should consult with a water attorney before entering into any agreements with neighboring land owners concerning the operation and maintenance of the ditch or the methods for accessing the ditch.  The attorneys at Nazarenus Stack & Wombacher are experts in this area and can provide legal advice specific to your circumstances. 

William Wombacher