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<br />V <br />B. The "Taking" Issue: Colo. Canst., Art. II, Section 15. <br /> <br />Although many state courts have imposed liabilit:y upon drainage <br />and irrigation districts for injuries due to flooding or <br />seepage on the basis of the constitutional prescriptio;! from <br />taking land without compensation, 1:he Colorado Court has thus <br />far refused to follow that theory. In North Sterling Irrigation <br />District v. Diekman, supra, the Court held .there was no "taking" <br />requiring compensation due to the seepage of plaintiff's land <br />by water from the ditch. In Aicher v. City of Denver, supra, it <br />likewise was held that "so long as they do not direcily encroach <br />on contiguous property, although they may impair its use by <br />their indirect :::onsequences, (municipal acts) do not con- <br />stitute a violation of the constitutional provision...." <br />52 P. at 88. <br /> <br />Finally, the 1951 case of City of Englewood v. LinkenhE"il, <br />146 Colo. 493, 362 P.2d 186, showed that the Colorado Court <br />has not yet cha:1ged its mind about the taking issue. It <br />held there was ::10 taking where the city's street improvements <br />had caused water to back up on plaint:iff' s land recurrently. <br /> <br />C. LiabilLty for Negligence. <br /> <br />As pointed out above, negligence is the most likely source <br />of liability for damages for injuries due to maintenance of <br />a ditch. Upon .that theory the Olney Springs case, supra, was <br />decided, as welL as the recent casE~ of Wilson v. CaMeJO.. Colo. <br />App., 518 P.2d '~52 (1973). <br /> <br />A drainage dist:::ict is liable in tort, since governmental <br />immuni ty doesn I.: shield it. Colorado Inves'Dnent and Realty <br />Co. v. Riverview Drainage District, 83 Cofo. 468, 266 P. 501 <br />(1928). The statute of limitationE; on actions for damages to <br />real property applies to suits ariE;ing from injuries due to <br />flooding, seepaqe or erosion, and such inju:::ies are permanent <br />rather than con;:inuing, and therefore the sl:atute begins to <br />run from the time of the first visible signs of damage.. Seven <br />Lakes Reservoir Co. v. Majors, 69 Colo. 590, 196 P. 334 (1921). <br /> <br />III. Conclusions. <br /> <br />While there seens to be a good case to be made limi tinc:f the <br />liability of a drainage district similarly as to that of the <br />irrigation district under the statu.te, no case in Colorado has <br />yet decided that particular point. If the district's lia- <br />bility for its ditches is limited to negligence, the choice <br />between constructing improvements t.O exist.ing natural channels <br />or new artificial ones need only be based on engineering con- <br />siderations, n01: legal ones. <br /> <br />-4- <br />