After months of searching, you finally found a parcel of land with beautiful views and a bubbling creek running through it. You purchase the land, envisioning your dream home next to the creek, with grass for your horses, vegetable gardens and perhaps even a small ornamental pond filled with water from the creek.
Shortly after closing, the fall colors begin to paint the landscape, and you notice the creek drying up. Your neighbor informs you that the creek is, in fact, an irrigation ditch carrying decreed water rights belonging to landowners downstream and that it runs only from spring through October.
Because the arid West does not receive enough natural rainfall each year to adequately grow crops, agricultural landowners began to control water from rivers and reservoirs for irrigation. The Colorado Constitution provides that the waters of every natural stream are the property of the people of the state of Colorado who have the right to divert the unappropriated water of any natural stream to beneficial use, thus creating a water right that may be decreed by a court. Because lands where water is used are often located away from streams and rivers, ditches may be constructed to carry the water to agricultural land.
This makes sense to you generally, but a review of your title policy gives no indication of a ditch easement. You learn that your neighbor does, in fact, have an unwritten ditch easement acquired by parol license. In the later part of the 19th century and throughout the 20th and 21st centuries, many ditch easements were unwritten acquired simply by verbal consent, in which a landowner gives permission to someone to construct a ditch. Once the ditch owner proceeds to enter on the land and construct a conveyance ditch, in reliance on the landowners permission, the consent becomes irrevocable, and a ditch easement is created.
Another common means of acquisition for a ditch easement is an implied grant, in which a landowner sells a parcel of irrigated land, while retaining ownership to the land on which the conveyance ditch lies. There results an implied easement for the use of that ditch. Likewise, once a ditch has been used for an appreciable period of time, an implied grant exists.
The next spring, you have troubles. You arrive home one day to find someone working on the ditch with heavy equipment. He has placed piles of dirt on your property near the ditch bank and cut down some of the vegetation on the bank. You ask him what he is doing, and he says he is not trespassing but has been hired by your neighbor to clean the ditch to get it ready for the irrigation season. He says this also benefits you because maintenance of the ditch makes it less likely to breach and flood your property.
He tells you that many easements, whether written or acquired by consent, fail to define the scope of the easement. The scope of the easement is therefore defined by Colorado law, which provides that an easement includes whatever is necessary to maintain and use the ditch. This includes the right to carry water in the ditch as well as access along the ditch to inspect and maintain the ditch. The ditch easement is wider than the banks of the ditch to allow for equipment and the placement of dirt and debris removed from a ditch, often referred to as spoils. Together with the right to use a ditch, is also the responsibility for maintaining the ditch. Ditch owners who fail to act as a reasonably prudent person in cleaning and maintaining their ditch may be liable in damages to underlying landowners if the ditch overflows and causes damages.
Finally, you are ready to begin the landscaping of your property. You decide to contact your neighbor before you begin, which is wise because Colorado law has also provided for civil and criminal penalties for tampering or interfering with a ditch that belongs to another. The penalties range from damages caused to the ditch owner to fines and jail time.
Your neighbor informs you that he owns the ditch together with several other landowners, and they share in the maintenance costs. Your neighbor contacts the other ditch owners, and they agree to permit you to carry water in the ditch if you are willing to share in the costs of maintenance but, first you need to find water; the water in the ditch is already spoken for.
This ditch on your property is a lateral ditch that receives its water from a private company. Ditch companies acquire decreed water rights, then sell to agricultural landowners shares of stock representing a right to use a pro rata share of the water rights. The ditch company has a ditch rider who maintains the companys ditches and controls the structures that deliver water into the lateral ditches known as headgates. The shareholders pay assessments to contribute to the costs of operating the company and maintaining the ditches. You learn that this ditch company has shares of water available for your purchase, and you purchase enough shares to irrigate your property and fill your pond.
Ditch easements and water rights are unique concepts that provide a way of life in the agricultural West. With communication, cooperation and an understanding of the rights and responsibilities of those involved, neighbors can work together to receive adequate water, when available, for agricultural and other needs.
Nancy Agro is an attorney practicing with the law firm Miller, Agro & Robbins LLC in the areas of water, real estate and business law.