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New Law Regarding Ditch Rights-of-Way

August 2, 2019, House Bill 19-1082 made effective what has been a part of the common law in Colorado for many years. The General Assembly amended C.R.S. § 37-86-103 to provide that a ditch right-of-way includes the right to construct, operate, maintain, repair, and replace the ditch and its appurtenant structures, and to improve the efficiency of the ditch, including by lining or piping the ditch easement. In addition, under the new statute, the ditch right-of-way allows its owner to enter upon the property burdened by the easement to access the ditch to maintain or to perform improvement, such as piping.

Colorado courts have regularly addressed the issue of maintenance and improvements to ditch rights-of-way, and the new law is hardly a departure from their approach to the issue. For instance, the common law has maintained that a ditch easement or right-of-way necessarily includes the rights of ingress and egress over the burdened property. And, in the seminal case Lazy Dog Ranch v. Telluray Ranch Corp., the Colorado Supreme Court held that unless the intentions of the servient and dominant parties require a different result, the owner of the easement (the “dominant” estate), may make any use of the easement (including maintenance, repair, and improvement) that is reasonably necessary to the enjoyment of the easement and which does not cause unreasonable harm or interference to the burdened party (the “servient” estate).

But the rights granted to ditch companies and easement owners are limited. The rights of access onto the burdened property must be for “reasonable and necessary purposes related to the ditch” under the new law. For example, clear-cutting trees or a large swath of vegetation while laying pipe within a ditch right-of-way might not be necessary for that specific improvement. It might be difficult for the dominant owner to prove that such measures are “reasonable” under the law. In Lazy Dog Ranch, the Court emphasized that the burdened property owner may also make certain uses of the ditch easement so long as he or she does not damage the ditch or unreasonably interfere with the dominant estate holder’s ability to maintain the ditch. Nevertheless, the recurring trend in Colorado courts has been to favor owners of ditch easements and rights-of-way. § 37-86-103 appears to be the culmination of that trend in Colorado law.

If you own property that is burdened by a ditch right-of-way, the language of § 37-86-103 could impact you. It is important to note that ditch companies not only have the right to maintain their ditches, but they also have an affirmative duty to do so. Thus, ditch companies may point to § 37-86-103 as the basis for entering onto an easement that burdens your property in order to repair, maintain, or improve their ditch. If you interfere with or obstruct a ditch company’s ability to perform its right and obligation to maintain, you may be opening yourself up to liability for damages and costs in the event of a suit. However, § 37-86-103 states that any maintenance or improvement must be “necessary” and not unreasonably interfere with a burdened property. Thus, the burdened estate is encouraged to observe the actions by the dominant estate under § 37-86-103 to ensure that any maintenance or improvements are workmanlike and reasonable under the circumstances.

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