PROJ02195

• Contract/PO #: 07000000090
• Contractor Name: Ditch and Reservoir Company Alliance
• Contract Type: Grant
• Water District: 0
• Loan Projects - Doc Type: Report

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plication early in the process, so that negotiations about ac-
commodations for the change can occur earlier rather than
later, after the ditch company files a protest of the change in
Water Court. Also if the stockholder fails or refuses to sub-
mit the application to the board before running off to Water
Court, the ditch company could object to the Water Court
Referee or Judge that the stockholder failed to comply with
the bylaws.
One of the most important state statutes for mutual ir-
rigation company law is the Colorado Constitution's codified
provisions regarding a ditch right of way or easement:

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7-42-103. Right-of-way.
Any ditch, reservoir, or pipeline corpora-
tion formed under the provisions of law shall
have the right-of-way over the line named in
the certificate, and shall also have the right to
run water from the stream, channel, or water
source, whether natural or artificial, named
in the certificate through its ditch or pipe-
line, and store the same in any reservoir of the
company when not needed for immediate use.
The line proposed shall not interfere \vith any
other ditch, pipeline, or reservoir having pri-
or rights, except the right to cross by pipe or
flume; nor shall the water of any stream, chan-
nel, 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 priOlity of right thereto, but
this shall not be construed to prevent the ap-
propriation and use of any water not thereto-
fore utilized and applied to beneficial uses.

The typical question by a new landowner is, "Why do you
think you can come onto my land and burn up my trees and
my landscaping just to clean your ditch?"
There is an answer. Just what are the rights and source
of right for the ditch system? Usually there are no known
written easement grants for any portion of the ditch system;
and except for the recent subdivisions within which a written
easement was obtained, the ditch company only knows that its
ditch has existed for many, many years in the same location.
Undoubtedly some recorded deeds for properties across which

the ditch crosses refer to the ditch-and some undoubtedly do
not-and no specific location or statement of the rights of the
ditch company are mentioned. Likewise, no specific easement
\vidth is mentioned in any of the recorded deeds.
Most of the older ditches were built more than 100 years
ago. The ditch company assesses its stockholders for the cost
of maintenance and upkeep of the ditch on an annual basis.
The distinction between a ditch company with water rights
and a lateral ditch company or field ditch without water
rights is not critical to a discussion of the easement rights of
the ditch company.
Irrigation ditches were constnlcted in Colorado long be-
fore it became a territory or a state. Territorial laws recog-
nized the appropriation of water from natural drainage ways
for irrigation and mining uses. Colorado's constitution rec-
ognized the water rights existed at the time it was admitted
to statehood, and recognized the irrigation and mining ditch
systems that existed at that time, as well as the ditch systems
that could be built later. In 1861 the following statute, with
small subsequent amendments, was passed by the territorial
legislature:

Any person owning a water right or condi-
tional water right shall be entitled to a right-
of-way through the lands which lie between the
point of diversion and point of use or proposed
use Jor the purpose of transporting water for
beneficial use in accordance with said water
right or conditional water light.

The statute guarantees an easement for ditches from natu-
ral streams to irrigable land by an appropriator.
Many ditches were established in the mid 1860s. Most
19th century ditches were constnlcted \vithout written ease-
ments from the affected landowners. This is certainly logical
since landowners benefited by the ditch construction, and
they usually received water the for irrigation of their land.
With the advent of nlral subdivisions, many residents are un-
aware of Colorados long history of ditch company rights, and of
private landowners who have private ditches across neighbors
property, for ditch maintenance, use and operation.
Please see "Dealing with Urbanization" for a detailed
discussion of the ditch easement and how to protect it
against urbanization. .
DARCA

'The proper spelling of bylaws is "bylaws" and not "by-laws:' For those who prefer the British version it is "bye laws:' however from now on one should not hyphenate bylaws for
to do so is to use improper American grammar.
2"Cumulative voting" means the stockholder has the number of votes based on the number of shares owned that is then multiplied by the number of board positions that are up for
election, and then all of the votes can be cast for one candidate.
3Some ditch companies directly elect the officers of the company at the annual stockholders meeting and then the officers become the board of directors.
'7-42-118. liability of stockholders, directors, and officers. Stockholders, directors. and officers of corporations formed under the provisions of this article shall enjoy the same
measure of immunity from liability for corporate acts or omissions as stockholders, directors. and officers of corporations formed under the "Colorado Business Corporation Act".
articles 101 to 117 of this title. or as members. directors, and officers of nonprofit corporations formed under the "Colorado Revised Nonprofit Corporation Act", articles 121 to
137 of this title.
5Assessments for a lateral ditch company may be hard to collect due to the fact that a lateral ditch does not have any water rights attached to the stock ownership. It is tempting
for a landowner who no longer uses the lateral ditch to stop paying assessments. With a "cooperative" main ditch the provisions of Article VI, Subsection 2d. can be used to pre-
vent the transfer of the "parent ditch" shares until the stockholder also takes the lateral ditch shares. The author also believes that the lateral ditch company can bring an action in
court on equitable grounds to. force a landowner to continue to pay assessments even though the landowner irrevocably waives rights of irrigation from the lateral ditch.

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Ditch Company Handbook I June 2005