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37-87-105
<br />Water and Irrigation
<br />lion is ordinarily a question of fact. Bart v.
<br />Game, Fish & Parks Comm'n, 30 Colo. App.
<br />482, 497 P.2d 340 (197?).
<br />Bul where the court found Iha! with modern
<br />meteorological techniques, a maximum prob-
<br />able storm is predictable end a mezlmum
<br />probable flood is foreseeable, and the storm
<br />and flood which occurred were less than
<br />mazimum, the defense of "act of God" is not
<br />available. Barr v. Game. Fish & Parks
<br />Comm'n. 30 Colo. App. 482, 497 P.2d 340
<br />(1972).
<br />An owner B defined io few to be, "He who
<br />had dominion over a thing which he may use
<br />as he pleases except as restrained by the law
<br />or by an agreement", and "includes any
<br />person having a claim or interest in real prop-
<br />erty, though less than an absolute tee".
<br />Lorimer County Ditch Co. v. Zimmerman. 4
<br />Colo. App. 78, 34 P. I I f 1 11893).
<br />Because the intention of the general assembly
<br />was to hold responsible the parties whose duly
<br />it was to construct and maintain, and to con-
<br />strue the statute otherwise would defeat the
<br />legislative intent, and might in any instance
<br />prevent redress to the injured party. Lorimer
<br />County Ditch Co. v. Zimmerman, 4 Colo.
<br />App. 7R. 34 P. I I I 111893).
<br />560
<br />The responsibility is laid only upon the
<br />owners of reservoirs which store water for irri•
<br />gation. This right of storage includes surface
<br />or flood waters, as well as waters diverted
<br />from a natural watercourse. Canon City & C.
<br />C. R. R. v. Oxtoby, 45 Colo. 214, 100 P. I I?7
<br />(1909).
<br />A prima facie case is made when the damage
<br />and reuse, by the breaking, are established,
<br />Lorimer County Ditch Co. v. Zimmerman. 4
<br />Colo. App. 78, 34 P. I I I I (1893).
<br />And it is not necessary to allege and prose
<br />negligence. See Lorimer Coumy Ditch Co. c.
<br />Zimmerman, 4 Colo. App. 78, 34 P. IIII
<br />(1893); Garnet Ditch & Reservoir Co. e.
<br />Sampson, 48 Colo. 285, 110 P. 79 (19101.
<br />Where defendants created large bodies of
<br />liquid tailings upon their land end thus xere
<br />stalulorily obligated to prerent the escape of
<br />Ih¢se• materiels and (heir failure to contain
<br />these harmful and obnoxious materials result,
<br />in their being liable for the resuitant damage,.
<br />regardless of fault on their pan, because
<br />liability for damage which directly result,
<br />(rain floods is fixed by this section. Frecl v.
<br />Ozark-M ahoning Co., 208 F. Supp. 93 (D.
<br />Colo. 1962).
<br />37-87-105. Approval of plans for reservoir. No reservoir of a capacity of
<br />more than one thousand acre-feet or having a dam or embankment in excess
<br />of ten feet in vertical height. or having a surface area at high waterline in
<br />excess of twenty acres shall be constructed in this state unless the plans and
<br />specifications for the same have first been approved by the state engineer
<br />and filed in his office. The state engineer shall act as consulting engineer
<br />during the construction thereof, and shall have authority to require the mate-
<br />rial used and the work of construction to be done to his satisfaction. No
<br />work shall be deemed complete until the state engineer furnishes to the
<br />owners of such structures a written statement of the work of construction
<br />and the full completion thereof, together with his acceptance of the same.
<br />which statement shall specify the dimensions of such dam and capacity of
<br />such reservoir.
<br />Source: L. 1899, p. 314, § I; R. S. O8, § 3205; C. L. § 1685; L. 25, p.
<br />330, § I ; CSA, C. 90, § 83; CRS 53, § 147-5-5; C.R.S. 1963, § 148-5-5.
<br />Law reriews. For note, "One Year Review
<br />of Civil Procedure", see 41 Den. L Ctr. ]. 67
<br />(1964). For article, "Water for Oil Shale
<br />Development", see 43 Den. L.J. 72 (1966).
<br />Knowing the imminent danger attendant
<br />upon the storage of water, and to avoid, as (ar
<br />as it was possible for human agency to avoid.
<br />damages to the lower proprietors. the general
<br />assembly provided the scheme of protection
<br />found in this and the following sections.
<br />Garnet Ditch & Reservoir Co. v. Sampson. 48
<br />Colo. 285, 110 P. 79, 1136 (1910).
<br />It only applies 1o reservoirs having certain
<br />capacity or dams having certain dimension.
<br />Garnet Ditch &. Reservoir Co. v. Sampson. 4N
<br />Colo. 285, 110 P. 79, 1136 (1910).
<br />The enactment of This and the following sec-
<br />tions did not repeal section 37.87.104. Garnet
<br />Ditch & Reservoir Co. v. Sampson. a8 Colo
<br />285. 110 P. 79 (1910).
<br />By this section, dams of the dimensions men•
<br />lioned are required to be under the supersision
<br />of the stale engineer, and it becomes his Juty
<br />to supervise the construction of resen oin.
<br />and exercise a general supervision of them .u
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