BOARD02598

• Board Meeting Date: 9/18/1974
• Description: Agenda or Table of Contents, Minutes
• Board Meetings - Doc Type: Meeting

time we are doing this.

Mr. Saarks: Only as incidental. There are cases that we know of
alrea y where the ditches are themselves creating a considerable hazard.

Mr. Ford: Larry, supposing you have a canal. It is carrying a head
of water and you have a natural cloudburst above that and it comes down I
a natural watercourse and does cause that canal to break and run on
down and cause damage below. The cause of that was the cloudburst
above the ditch. That is our problem over in our country.

Mr. Starks: This happens frequently. The courts are no longer getting
great y impressed by so-called acts of God. For years that was a
prevalent theory that many of these things were so-called. acts of God
and were therefore unavoidable. But the courts have backed away some
from that theory. They are saying if it was foreseeable, for instance,
the occurrence of an intermediate regional flood, then liability
attaches. The state of Colorado found out that the hard way in 1965.
The state got tagged for flood damages in excess of a million dollars
for a structure that the Game and Fish Department had construc~ed on
Clay Creek near Lamar.

Mr. Ford: They are going to have to build chutes across natural water-
courses.

Mr. Sparks: They are going to have to construct better flumes across
where these floods may occur.

Mr. Geissinger: Mr. Chairman, I might say in this regard that it has
been the law for a good many years in this state that if a reservoir
goes out there is an absolute liability. That is still in the books.
I~ a ditch goes out, there is no liability in the absence of negligence.
In other words, we have removed the question of an act of God from the
reservoir liability. Many, many years ago, I don't know when that
statute was first passed, but it was way back maybe sixty years ago, a
hundred years ago, in the early '50's, but they do make that distinc-
tion. And there have been suits filed under that. I think under this
case that Larry mentioned, the Clay Creek situation, there was still
a question as to the state's liability. At that time we had sovereign
immunity that is going out the window and has gone out the window since
that case was decided. But in that case, the legislature removed the
sovereign immunity as I understand it and permitted'these folks to
bring this action for damages. Otherwise I think at that time we might
have relied on sovereign immunity. But nevertheless, Larry mentioned
the problem of an irrigation ditch crossing a natural draw. Maybe if I
there were some method for providing for release of that water, or when
it goes across that natural draw, or a part of it in some manner here
into that natural drain, I think that might be an answer to some of these
canal problems that have been mentioned here. I am just offering this
as a possible line of thinking.

Mr. Kroeger: Thank you, Jimmy. We have not had you representing the

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