FLOOD09315

• County: Statewide
• Basin: Statewide
• Title: General Principles of Drainage Law Outline
• Date: 1/15/1980
• Floodplain - Doc Type: Educational/Technical/Reference Information

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1-15-80

9 Colo. 554, 13 P. 729 (1887). In the case of municipalities,
however, the distinction between unlawful collection, diversion,
or concentration of surface waters and lawful improvement is not
always clear particularly as the pace and extent of urbanization
increases. City of Englewood v. Linkenheil, 146 Colo. 493, 362
p.2d 185 (1961); Aicher v. Denver, 10 Colo. App. 413, 52 P. 86
(1897).

1. Planning Drainage Improvements.

As a general rule, municipalities are under no
legal duty to construct drainage improvements unless public improve-
ments necessitate drainage - as in those situations in which street
grading and paving or construction of schools accelerate or alter
storm runoff. Denver v. Mason, 88 Colo. 294, 295 P. 788 (1931);
Denver v. Capelli, 4 Colo. 25, 34 Am.Rep. 62 (1877); Daniels v. City
of Denver, 2 Colo. 669 (1875). This is because statutory provisions
authorizin6 municipal drainage improvements and flood control are
generally written in nonmandatory language. Thus, absent mandatory
statutory language imposing a duty on municipalities or judicial
imposition of an implied duty to avoid or abate injuries, munici-
palities are not liable for failing to provide drainage or flood
control. Similarly, it is generally held that municipalities are not
liable for adoption or selection of a defective plan of drainage.
Malvernia v. City of Trinidad, 123 Colo. 394, 229 P.2d 945 (1951);
City and County of Denver v. Mason, 88 Colo. 294, 295 P. 788 (1931);
Aicher v. City of Denver, 10 Colo. App. 413, 52 P. 86 (1897); Denver
v. Capelli, 4 Colo. 25, 34, Am. Rep. 62 (1877). These decisions,
however, were based primarily on governmental immunity which pro-
tected municipalities from liability when exercising governmental
or discretionary powers as opposed to proprietary or ministerial
powers. In Colorado, governmental immunity has been partially
waived and the governmental-proprietary distinction has been
abolished. C.R.S. ~24-l0-l0l. As a result, Colorado municipalities
may be exposed to liability in the future for adoption or selection
of defective plans or design for drainage.

2. Construction, Maintenance, and Repair
of Drainage Improvements.

Municipalities can be held liable for negligent
construction of drainage improvements, McCord v. City of Pueblo,
5 Colo. App. 48, 36 P. 1109 (1894); Denver v. Rhodes, 9 Colo. 554,
13 P. 729 (1887); Denver v. Capelli, 4 Colo. 25, 34 Am. Rep. 62
(1877); (as well as for negligent maintenance and repair of drainage
improvements) Malvernia v. City of Trinidad, 123 Colo. 394, 229 p.2d
945 (1951); Denver v. Mason, 88 Colo. 294, 295 P. 788 (1931); Denver
v. Capelli, 4 Colo. 25, 34 Am. Rep. 62 (1877).

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