Chapter 11 - § 11.2 • CREATION OF THE RIGHT

• Jurisdiction: Colorado

§ 11.2 • CREATION OF THE RIGHT

§ 11.2.1—By Construction And Use

The majority rule in Colorado common law recognizes that a ditch right is ipso facto valid by the construction and use of the ditch. Proof of ditch construction and use thus creates the presumption that consent to such construction had been granted in the past.⁶ Once a court has found such consent, construction, and use of an irrigation ditch, permission for the associated easement may not be revoked.⁷

The existence of these ditch rights or easements is frequently contested by the servient landowner, as there is often no recorded document in his or her chain of title evidencing the right. Nonetheless, Colorado law zealously protects these unrecorded easements.⁸

§ 11.2.2—By Severance

A ditch right may also be created where a single parcel is benefited by a ditch and then is divided, with the result being that the down-gradient parcel is dependent on the carriage of water in the ditch across the higher parcel for irrigation.⁹ In order for the ditch easement to be created on a servient estate upon severance of a parcel, five factors must be present:

1) The servient and dominant estates must have been commonly owned.
2) The use must have been exercised prior to the severance of the estates.
3) The use cannot be temporary.
4) The continuation of the use must be reasonably necessary for the enjoyment of the dominant estate.
5) There must be no contrary intention expressed or implied in the instrument severing the estates.¹⁰

§ 11.2.3—By Deed

A ditch easement can be granted by deed from the landowner.¹¹ The fact that an easement may be acquired by the exercise of the power of eminent domain does not preclude the acquisition of an estate in fee simple by purchase of the easement from the owner.¹² Ditch companies may own lands upon which the ditch is located in fee. In this situation, however, a company may be unaware of its ownership as the land is not taxed.¹³

Practice Pointer
An attorney should consider performing a title search of any lands in question along the ditch's course to determine who is the fee owner and if there is a deeded easement.

§ 11.2.4—By Entry Onto Federal Lands

In the nineteenth century, Congress granted irrigators, upon construction, permanent ditch easements. The first of these was the Act of 1866.¹⁴ This act confirmed existing easement rights for water facilities constructed on federal lands not yet withdrawn from the public domain. A person could simply enter federal lands and construct a ditch without notice or permit. The construction of the ditch and perfection of the water right under state law created the easement.

The 1891 Irrigation and General Right of Way Act¹⁵ granted easements and rights of way to "canal ditch companies and irrigation or drainage districts for irrigation or drainage purposes and operation and maintenance of reservoirs, canals, and laterals." It required the filing of the articles of incorporation of a requesting company, as well as a map and approval of the same by the Secretary of the Interior.¹⁶ The Act of 1901¹⁷ provided for the issuance of permits for all water uses, subject to regulation for the public interest by the Secretary of the Interior.¹⁸

The overlapping statutes and attempted regulation of ditch rights by the United States has often led to litigation.¹⁹ It...