CO Code § 37-86-105 (2021)
2021 Colorado Code|Title 37 - Water and Irrigation|Article 86 - Rights-of-Way and Ditches|§ 37-86-105. No Land Burdened With More Than One Ditch

 No tract or parcel of improved or occupied land, without the written consent of the owner thereof, shall be subjected to the burden of two or more ditches or other structures constructed for the purpose of conveying water through said land when the same object can feasibly and practicably be attained by uniting and conveying all the water necessary to be conveyed through such property through one ditch or other structure.   History. Source: L. 1881: P. 164, § 1. G.S. § 1716. R.S. 08: § 3170. C.L. § 1626. CSA: C. 90, § 9. CRS 53: § 147-3-4. C.R.S. 1963: § 148-3-4. L. 69: P. 1220, § 7. History. Source: L. 1881: P. 164, § 1. G.S. § 1716. R.S. 08: § 3170. C.L. § 1626. CSA: C. 90, § 9. CRS 53: § 147-3-4. C.R.S. 1963: § 148-3-4. L. 69: P. 1220, § 7.    ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. BURDENING SERVIENT ESTATE.    III. PRIORITIES.     I. GENERAL CONSIDERATION.   Ditches subject to enlargement and joint use under the provisions of this section are strictly private ditches. Junction Creek & N. D. D. & I. Ditch Co. v. City of Durango, 21 Colo. 194 , 40 P. 356 (1895).   The provisions of this section are for the benefit of the landowner, and cannot be invoked by rival ditch companies. San Luis Land, Canal & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 P. 860 (1893).   Under this section and the next section, the owner of lands over which another has acquired an easement to maintain a lateral ditch, for the irrigation of his lands, is not, merely by his property in the servient tenement, entitled to divert water from such lateral, to the prejudice of the owner of the dominant tenement. Sebold v. Rieger, 26 Colo. App. 209, 142 P. 201 (1914).   This section does not conflict with the constitutional provisions granting a right-of-way for the construction of ditches, but, while recognizing the privilege, it simply undertakes to regulate the exercise thereof so as to inflict the least possible inconvenience and injury upon the owner of the servient estate. Trippe v. Overacker, 7 Colo. 72 , 1 P. 695 (1883).   The provisions of this section are not applicable where there is no ditch presently on a defendant's property ”constructed for the purpose of conveying water through said property“ and where a defendant's head ditch and laterals therefrom lie wholly on defendant's own property, or where it is undisputed that a defendant uses his head ditch to carry waters in a northerly and southerly direction from an irrigation system on his property, and plaintiffs' only requirement for a ditch across defendant's property is to carry their irrigation water both from the irrigation canal and the well in a northerly direction across the westerly portion of a defendant's property. Mott v. Coleman, 132 Colo. 306 , 287 P.2d 655 (1955).   The provisions of this section are not applicable where the ditches in question already exist and the rights of the parties in such ditches are already vested. Campbell v. Kelsall, 717 P.2d 1019 (Colo. App. 1986).   II. BURDENING SERVIENT ESTATE.   This section is designed to avoid the burdening of improved or occupied lands with unnecessary irrigating ditches, and to this end, it provides that under certain circumstances such lands shall not be subjected to the burden of two or more irrigating ditches, when the same object can feasibly and practicably be attained by uniting and conveying all the water necessary through such lands in one ditch. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326 , 29 P. 742 (1892).   This section is intended to prevent improved lands from being needlessly cut up by many ditches to lead water to lands of other owners. Broadmoor Land Co. v. Curr, 133 F. 37 (8th Cir. 1904).   Under this section as it existed prior to the law of 1881 any number of farmers cultivating separate tracts of land below, whenever it became necessary for them to bring water through the lands of another lying above, in order to obtain a sufficient fall for the purpose of irrigation, might each condemn a right-of-way for the construction of a separate ditch through such lands, thus burdening the servient estate with one ditch after another until its value would be greatly reduced, or perhaps totally destroyed, with no authority in the proprietor to prevent the same. Downing v. More, 12 Colo. 316 , 20 P. 766 (1888).   This and the following section clearly and in unmistakable language apply to the right of the owner of the lands to assert that his property shall not be burdened with more than one irrigating ditch, provided that one ditch be of sufficient capacity to carry water for the purposes contemplated by the act. San Luis Land, Canal & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 P. 860 (1893).   Two or more outside parties cannot burden the servient estate with two or more ditches and two or more easements without the owner's consent, when it is practicable to accomplish the same object by imposing but one burden. Downing v. More, 12 Colo. 316 , 20 P. 766 (1888).   Upon a proper verdict a court may authorize a petitioner to enlarge, improve, and use a ditch in common with the original owner. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326 , 29 P. 742 (1892).   A court cannot require such owner to perform work or make expenditures for the purpose of adapting the ditch to petitioner's use. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326 , 29 P. 742 (1892).   Construction of section in relation to federal reclamation statute. United States v. O'Neill, 198 F. 677 (D. Colo. 1912 ).   III. PRIORITIES.   This section indicates the general policy of the irrigation laws as to priorities, and even without such a statute, persons voluntarily uniting their irrigating ditches would not necessarily forfeit any priorities which they might have theretofore respectively acquired. Nichols v. McIntosh, 19 Colo. 22 , 34 P. 278 (1893).   The same irrigating ditch may have two or more priorities belonging to the same or different parties, and two or more persons may divert water through the same headgate for the irrigation of their several farms without any surrender, joinder, or merger of their respective priorities. Nichols v. McIntosh, 19 Colo. 22 , 34 P. 278 (1893).   Where petitioner and others arranged to divert water for the irrigation of their several farms through a single headgate, and so carried the water for a certain distance through a ditch constructed and used by them in common, these facts, without other pertinent evidence, do not justify the conclusion that petitioner agreed to surrender his separate priority; nor is the inference to be indulged that he intended so to do. Nichols v. McIntosh, 19 Colo. 22 , 34 P. 278 (1893).   It is not reasonable to suppose that priority of right to water, where water is scarce, or likely to become so, will be lightly sacrificed or surrendered by its owner, nor should the owner of such a right be held to have surrendered it or merged it, except upon reasonably clear and satisfactory evidence. Nichols v. McIntosh, 19 Colo. 22 , 34 P. 278 (1893).   Where it is a matter of mutual convenience to convey the water for the use of respective farms for a certain distance through the same irrigating ditch, in so doing the parties are entitled to have their respective rights protected the same as if the water had been conveyed through separate ditches, or through ditches having separate and independent headgates. Trippe v. Overacker, 7 Colo. 72 , 1 P. 695 (1883); Rominger v. Squires, 9 Colo. 327 , 12 P. 213 (1886); Downing v. More, 12 Colo. 316 , 20 P. 766 (1888); Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326 , 29 P. 742 (1892); Nichols v. McIntosh, 19 Colo. 22 , 34 P. 278 (1893).