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<br />September 1983 <br />Page 4 <br /> <br />e <br /> <br />themselves. A private landowner has no <br />right to misuse his own land to the <br />severe detriment of another; how can he <br />be heard to complain when a governmental <br />entity acts to insure this result, even <br />if development is strictured or he is <br />required to maintain the natural state? <br />414 A.2d at 289. <br /> <br />II. DAM LIABILITY <br /> <br />Section 37-87-104, C.R.S. 1973, provides that the <br />owner of a reservoir shall be liable for all damages arising <br />from leakage, overflow, or by floods caused by breaking of <br />the embankments of such reservoirs. under this section the <br />dam owner is liable whether or not he is negligent and <br />regardless of how careful or diligent he is in construction <br />or maintenance of the facility. Beaver water ~ IrriqCi.tion <br />Co. v. Emerson, 75 Colo. 513, 227 P. 547 (1924); Garnet Ditch <br />and Reservoir Co. v. Sa,mpson, 48 Colo.. 285, 110 P. 79 (1910). <br />The statute embodies the common law doctrine of "absolute <br />liabili ty" applied to certain dangerous enterprises. It <br />reflects the legislature's judgment that the impounding of <br />wa,ters cannot be made perfectly safe by the exercise of even ~ <br />the highest degree of care. ~ <br /> <br />This statute also provides that a public entity or <br />public employee as. defined by the Colordo GovernmentCi.l <br />Immunity Act cannot be an owner. This suggests that a public <br />enti ty will not be liable Under this statute. section <br />24-10-104, C.R.S. 1973 of the Gove.rnmental Immunity Act, <br />however, provides that, notwithstanding anyprovison of law <br />to the contrary, if a public entity carries insurance with an <br />insurer authorized to do business in Colorado to protect <br />itself or any of its employees against. liability for injury, <br />the public entity is deemed to hCi.ve waived the defense of <br />sovereign immunity in any Ci.ction for damages for any such <br />injury insured against. Damages are limited to the amount of <br />insurance coverage and can be recovered only from the in- <br />surer. It appears then that a local government may be liable <br />for damages caused by floods dUe to dam failure only to the <br />extent for which it has insured itself against suchlia- <br />bility. <br /> <br />e <br /> <br />