Cities and Ditch Companies: Can They Live Together?-part Ii
| Publication year | 1987 |
| Pages | 996 |
| Citation | Vol. 16 No. 6 Pg. 996 |
1987, June, Pg. 996. Cities and Ditch Companies: Can They Live Together?-Part II
Editor's note: This two-part article is the winning entry in the Metropolitan City Attorneys Association, Inc. 1986 Essay Competition. Minor editorial changes were made for publication in The Colorado Lawyer.
This two-part article assesses the evolving relationship between ditch companies and the cities, counties and other governmental units with which they co-exist in a relationship that has become increasingly difficult for both parties. Part I of this article, published in the May 1987 issue at page 815, addressed real property and drainage law in Colorado as it defines the legal environment facing ditch companies. This Part II applies these legal parameters to the present day issues affecting the relationship between ditch companies and the communities in which they exist.
As urbanization around ditch easements intensifies, the green space created by the easement may comprise the only open land (other than park land) in the area. While not universal, the first step toward preservation of the green area may be the requirement that the developer dedicate to the municipality a "scenic easement" or similar interest to be superimposed over the ditch easement. This act of dedication is often required as a condition of zoning, subdivision or PUD approval.
A scenic easement or a recreational corridor, superimposed over a ditch easement that originated either by grant or by prescription, may create interesting questions regarding the validity and extent of each easement; this assumes, of course, that the original grant was not made in fee or for exclusive use, in which case the new easement might be wholly empty of substance.(fn1)
The creation of scenic easements over historic ditch rights-of-way may cause uneasiness among the affected ditch companies and developers, particularly when the new easement purports to restrict tree cutting, digging or other historic maintenance activities. Although these covenants are only binding upon the grantor/developer and the developer's successors, it is not unheard of for a municipality to contend that its newly minted easement is dominant to the rights of the ditch company.
The developer's grant also may be of a recreational easement or trail corridor, an interest which may create more direct conflict if the grant actively is developed. An elementary fact sometimes overlooked is that the grantor of a second easement can grant only that which is left to give. That grant would not include interests which were previously granted to the ditch company or which purported to restrict acts that are reasonable and necessary to the maintenance and use of the ditch.(fn2)
The two key problems posed by recreational use are (1) interference with ditch operation and maintenance and (2) greatly increased exposure to liability. On narrow easements, the construction of sidewalks may be incompatible with the ditch company's deposit of dredged silt and other ditch debris or the company's operation of heavy equipment. Lawsuits initiated by cyclists or others are a realistic concern. Where more space is available, any trail development plan should take into account the ditch company's need for heavy equipment access and suitable areas for the piling of spoil and debris.
Bridging the ditch may pose special problems of maintenance and...
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