FLOOD02324

• Designation Number: 32
• County: Adams
• Community: Federal Heights
• Basin: South Platte
• Title: Water and Drainage at Niver Creek, Phases 1 and 2: Cities of Federal Heights and Thornton, Colorado
• Date: 2/1/1974
• Designation Date: 6/1/1974
• Floodplain - Doc Type: Floodplain Report/Masterplan

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18 years and the type of possession required, i. e. adverse, means,
as against one asserting a right to the land, open and notorious
ownership. The mere fact that the channel pre-dated urban
development is not a controlling factor in ownership but does have a
bearing, discussed below, on the burden that can be imposed on
lower lands.

B. LIABILITY FOR DAMAGE IF A LARGER FLOOD
THAN THAT USED FOR DESIGN PURPOSES OCCURS.

Our law, in apportioning the rights and obligations of property
owners in regard to the run off of surface waters is the "so called"
modified civil rule. The original statement of the civil rule was
that lower property owners (subservient estate) were required to
accept all waters from adjoining property owners (dominant estate)
which naturally drained on to their property. provided, the upper
property owners did nothing to change the natural drainage system.

This rule has been modified to meet the needs of urban develop-
ment and is applied here so that upper property owners have an
absolute right to discharge surface water within their natural course,
which right includes the right to collect those waters within a
conduit within the natural drainage course. City of Boulder vs.
Boulder & White Rock Ditch Co. 73 Colo. 426, 216 P. 553 (1923);
Ambrosio vs. Perl Mack Canst. Co. , 143 Colo 49, 351 P2d 803 (1960);
Hankins v. Borland. 163 Colo. 575, 431 P2d 1007 (1967).

The modified civil rule is easy of expression but difficult of application.
The reason for the difficulty is the paucity of cases that would be in
point.

In Ambrosio vs. Perl Mack Canst. Co., supra, the case most in
point, Perl-Mack designed a 72" storm drainage system to be
installed in the natural drainage course and to discharge its flow
upstream from Ambrosio, the plaint1ffs. After a heavy storm in
May, 1957, the plaintiff filed suit alleging that defendant had "burden-
ed the water course with more water in a concentrated mass at an
accelerated flow" than if the defendant had not acted.

Our Supreme Court stated our rule as follows:

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