FLOOD07908

• Designation Number: 260
• County: Jefferson
• Community: Unincorporated Jefferson County
• Basin: South Platte
• Title: Major Drainageway Planning - Sanderson Gulch/Weir Gulch Volume I
• Date: 8/1/1972
• Designation Date: 12/1/1987
• Floodplain - Doc Type: Floodplain Report/Masterplan

sale would secure the second element. Such an agr<i':E:I\l<i':nt
might tend to confuse the liability of the parties to the
extent that ownership is made more complicated, so the
agreement should expressly allocate flood damage liabilities.

of another. Feit v. Zoller, 155 Colo. 64, 392 F.2d 593 (1964);
Hankins v. Borland, 163 Colo. 575, 43l P.2d 1007 (1967). In
both cases there may have been a small degree of increased flow,
but a sharp issue of urbanizar.ion runoff has not yet been con-
sidered by Colorado Courts. Presumably the prescriptive right
of way is approximately limited to the magnitude of flow by
which it was created.

It appears that the ultimate method of condemnation exists
for the district under its very broad statutory powers. See
C.R.S. 1963, Sec. 89-21-20, Sec. 89-21-21 (8), Sec. 89-21'=25
(3) (a) (Supp. 1969). In particular, condemnation of less
than fee interests appears to be specifically authorized by
Sec. 89-21-21 (8), referring to the power to "condemn. . .
real property and personal property, including interests
therein. . ." It may be possible under thl.s sectl.on to
acqul.re by partial condemnation just the sort of agreement
described above.

IRRIGATION DITCHES

The advisability of discharging part of the storm flow into
irrigation ditches is questionable. The ditch is not designed
for carrying storm waters and does not necessarily carry it to
a point of discharge on a major flood channel. Although liability
would be passed to the ditch company for damage arising from
its ultimate discharge, the ditch company will not necessarily
be in any realistic position to shoulder that responsibility.
Drainage is the statutorily oharged function of the district
and discharge anywhere other than the district maintained and
managed floodway would be an evasion of that duty.
Because the district is the movant with respect to separating
storm flows from irrigation flows, part of the burden will probably
fall on it to construct the structures. The ditch oompany arguably
has a duty to build its own facility based first on its crossing
of the flood channel and second on its liability for the ultimate
discharge of flow. But if the company would take the position
of assuming that riSk and if it is not diminishing the flow
capacity of the channel, there may be nothing that can be done
to compel it to build a crossing structure. Again a situation
is presented where a negotiated settlement is the only probable
solution. Becaus~ the ditch company has an interest in getting
a crossing built, the chance that an agreement can be reached
for ratable participation in the construction cost is good.

There may be incidental benefits to support total acquisition
in terms of public recreation and park use. Where there is
a park agency to take over management of the reservoir,
total acquisition may be appropriate.

Irrigation ditChes were generally installed under rural conditions,
and were generally glad to accept storm runoff water that flowed
into them since it represented a valuable water resource to them.
In some cases, ditches may have obtained an appropriation right
to receive this water. Under urbanized conditions, the degree
and speed of runoff may have increased so substantially that the
water source is no longer wanted. The problem raised is what
rights and duties arise on the part of the ditch companies to
continue to receive flow or to pay for new physical facilities
to separate flows at drainage crossings.

At the outset, if the ditch company desires to receive a portion
of the water and has by appropriation acquired a right to the
water, they are entitled to receive it. It is not required that
there be a decree to the point of diversion, as only the relative
priQrity of the right is determined by the decree. Generally the
responsibility for the adequacy of the diversion structure is the
responsibility of the ditch OWner. In the absence of special
circumstances, the ditch owner has the right not to receive waters
it does not want.

A different situation is raised with respect to surface water~
which have not yet collected themselves into a natural drainage
way. COlorado cases on drainage depend on the finding of a
natural drainage or channel. Possibly diffused surface waters
would not be benefited with an casement for drainage purposes.
The obvious problem is that the distinction between a drainage
channel and a general slope is One of degree only. The other
possible outcome is that Colorado would extend its drainage
servitude beyond defined natural channels to embrace general
diffuse water. In this latter event, the result is that every-
where along its route the ditch would be crossing SOMe degree
of drainage easement. If it did not provide a means of passing
the water over itself, the ditch would presumably be required
to accept the flow historically taken. This same result would
be reaChed if it had been accepting flow for a period of 18
years under conditions sufficient to give rise to the doctrine of
prescriptive rights.

There are special circumstances wherc an obligation to receive
waters does arise. Basically, this is predicated upon a pre-
scriptive right by one to run drainage water through the facility

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