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<br />Thus it would seem that, unoer the common law of surface water, <br />whenever the channel of flow is alt:ered artificially (except <br />for minor man-made deviations, such as culverts or straightening <br />of a channel to improve flow), liability will attach for <br />damages caused by the importation of an amount of water for <br />which the injur'"d estate is not subject to a servitude unless <br />it can be said ':hat such Im.,rer owner had consented to t:he <br />importation of ::oreign water above or across his property. In <br />general, mere improvements to a natural watE"r course which <br />augment its flow and increase the volume of flowage slightly are <br />unobjectionable where the harm done is not. materially <::rreater <br />than that which would otherwise happen. <br /> <br />There is one ra1:her large caveat to be sugg,,,sted before <br />going too far: In North Sterling Irrigation District v. <br />Diekman, 59 Colo. 169, 149 P. 97 (1915), the Court construed <br />the predecessor of C.R.S. 1973, Section 37-84-101 to preclude <br />liabili ty for damages caused by main.tenance of a ditch in <br />the absence of negligence, at least where .the constl:uct.ion <br />and operation of the ditch is authorized by statute (as ditches <br />of drainage dist:ricts are in C.R.S. 1973, Section 37-21-114). <br />149 P. at 98. ~'he holding here was approved and recognized <br />as dispositive of the controversy in Bridgeford v. Colorado <br />Fuel and Iron Co., 63 Colo. 372, 167 P. 963,. 964 (1917). <br />(See also Annotation, 69 ALR 1232, 1235 (1930)). <br /> <br />Thus, despite the common law of surface waters in Colorado, <br />i.t would appear that the liability of a drainage district <br />for damages cam:ed by its ditch,,,s is limited to a negligence <br />theory. C.R.S. 1973, Section 37-84-101 reads as follows: <br />"The owners of cLny ditch for ir:cigation or other purposes <br />shall carefully maintain the embankments thereof so that the <br />waters of such c:itch may not flood or dama"e the premises of <br />others, and shall make a tail ditch so as to return the water <br />in such ditch with as little waste as possible into the stream <br />from which it wcs taken." (Emphasis supplied) Thou"h the <br />section seems aimed principally at irri"ation ditches and <br />has only been applied in such case", there would seem to be <br />no reason why it. should not apply too drainage ditches of <br />draina"e districts nor any reason not to int.erpret it in <br />favor of the drainage district on the same basis as for the <br />irrigation dist:rict. <br /> <br />The only Colorado case where a drainage di"t.rict was "ued for <br />damage" for injvry due to overflow did not cite the "t:atute. <br />However, the Court in imposing liability u"ed the lan<::fuage of <br />negligence: failure to use due care. Olney Spring" Drainage <br />District v. Auckland, 83 Colo. ';10, 267"--P:-- 6'05 (1928). <br /> <br />-3-. <br />