Cities and Ditch Companies: Can They Live Together?-part I
| Publication year | 1987 |
| Pages | 815 |
1987, May, Pg. 815. Cities and Ditch Companies: Can They Live Together?-Part I
Editor's note: This 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. This Part I addresses real property and drainage law in Colorado which defines the legal environment facing ditch companies. Part II, to be published in the June issue, will apply these legal parameters to the present day issues affecting the relationship between ditch companies and the communities in which they exist.
Many changes have occurred during the last century with regard to irrigation ditches. In the 1800s and early 1900s, the construction and operation of large irrigation ditches was primarily rural in nature, an assumed fact of life in an area dependent on agriculture. Historically, there was only incidental involvement between the companies and municipal government. During the 19th century, the terms "zoning," "land use control," "permitting" and "environmental compliance" were unknown.
The acquisition of agricultural water rights for municipal use, once incidental, is now widespread. Often, the acquisition of rights by a city is not part of a master water supply plan, but is a result of annexation. Increasingly, municipalities are becoming large or even majority owners of ditch companies formerly run by farmers.
As cities and counties develop master drainage and flood control plans, irrigation ditches are sometimes eyed as handy conduits for drainage flows caused by street paving or industrial and commercial development. Such changes are often gradual, but may create problems for the ditch company, downstream landowners and the governmental unit.
The urbanization of formerly agricultural areas has been the major impetus to conflicts between ditch companies and cities. Increased human contact with ditches, particularly by small children, has increased the risk of potential liability. Ditch rights-of-way have come to be regarded as recreational corridors through urban areas, which can cause major headaches to those performing ditch maintenance and to the ditch companies' attempts to minimize liability exposure.
Increasing densification has also encouraged encroachments upon historical rights-of-way by developers. Municipalities are often uncomfortable in the role of mediators between ditch companies and developers, since the companies' position may be at odds with the city's own plans.
These conflicts are now familiar to most units of local government. Whether these encounters become combative is largely a matter of choice. The key to solving the problem lies in respecting the critical interests of each party.
Ditch easements generally fall into three main categories. Perhaps the rarest is the fee grant. A fee grant generally conveys the surface and subsurface, with reservation of few (if any) elements of the estate to the grantor. More common is either an easement by grant or an easement which can generally be described as "prescriptive" in nature. The term "prescriptive" as used here is broader than the strict legal outlines of adverse possession for the statutory period. Ditches constructed pursuant
Although a prescriptive easement may have origins which vary depending on the nature of land ownership at the time of ditch construction.(fn2) this term generally means an easement, with no legally described boundaries, which is measured by use based on historical...
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