There's a Ditch on My Property

July 23, 2019

As Colorado’s population growth and urbanization expand into rural areas, homeowners and irrigation ditches are increasingly overlapping. In our experience, this urbanization is creating conflict between the new residents and ditch systems, some of which are well over a century old. If there is an irrigation ditch located on or adjacent to your property, you should be very cautious not to take any actions that would remove water from the ditch, make changes that increase the surface runoff into the ditch, impact the ditch’s ability to carry water, or interfere with the ditch owner’s ability to maintain the ditch. This article will discuss: (1) the creation of ditch easements; (2) the size of ditch easements; (3) ownership of water in a ditch; and (4) alterations to a ditch or ditch easement.

Colorado law is very protective of ditches and ditch owners. In fact, the Colorado Supreme Court has recognized that ditches “permit a landscape, economy, and history in which fertile valleys prosper. Without them, properties adjacent to or distant from watercourses wither . . . . Rather, as early as the tenure of the territorial legislature, our lawmakers recognized that our arid climate required the creation of a right to appropriate and convey water across the land of another so that lands not immediately proximate to water could be used and developed.” Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1232–33 (Colo. 2001).

Some ditch owners own the land underlying and adjacent to their ditch. Other ditch owners own a ditch easement to use another person’s land to maintain and operate a ditch. A ditch owner may also own some of the land underlying its ditch, but hold a ditch easement for the remainder of the land required to operate and maintain its ditch. Easements are considered to be the “dominant” estate, meaning that the easement holder’s rights to use the easement for its intended purpose are superior to those of the underlying landowner to use the land where the easement is located. Because any alterations to easements or property owned by another person constitutes a trespass, this article will focus on the issues related to a ditch easement located across another person’s property.

Under Colorado law, once a ditch is excavated and put to use without objection, or by approval, from the underlying land owner, the landowner may not withdraw his or her consent, deny the right of maintenance, or destroy the ditch. Accordingly, a ditch owner does not need a written document, a deed, or proof of permission because consent is presumed. This can lead to confusion because a ditch easement may not show up in the property records and requires a landowner or prospective purchaser to inspect the property to discover a ditch easement.

A ditch easement may also be wider than some landowners realize. The scope of a ditch easement extends to both side of the ditch, and includes the amount of land reasonably necessary to use and maintain the ditch. Many ditch companies require a ditch road on both sides of the ditch and any additional land required for lateral support of the ditch banks. Ditch owners in a flat area will likely require at least 20 feet of land on both sides of their ditch banks for proper operation and maintenance. In mountainous areas, however, ditch easements may extend over 100 feet from the ditch banks. One should always check with a ditch company before undertaking any actions in the vicinity of a ditch. In addition, landowners should be aware that ditch owners have the right of access to ditch easements at any time for the purpose of inspection, operation, and maintenance.

One should also assume that all of the water in a ditch is owned by the ditch owner. A ditch owner will carefully measure, monitor, and deliver water through his or her ditch. Irrigation water typically runs through ditches from April through October. Some ditch owners, however, have the right to deliver water through their ditches at any time of the year, and the flows in a ditch may change on an hourly, daily, monthly, or seasonal basis. Accordingly, ditches and ditch banks are not safe for recreational purposes and no one should access any part of a ditch or the surrounding land without written permission from the ditch owner. 

Finally, a landowner who has a ditch on his or her property may not move or alter the ditch or ditch easement without the ditch owner’s consent. If the underlying landowner cannot obtain consent from the ditch owner, the landowner may seek a declaratory determination from a court. The landowner has the burden to prove that his or her proposed ditch alterations will not significantly lessen the utility of the ditch easement, increase the burdens on the owner of the ditch easement, or frustrate the purpose for which the easement was created. A few examples of ditch alterations are relocation or realignment of a ditch, replacing the ditch with a pipeline, constructing anything that crosses over or under a ditch or that is located within the ditch easement, development of adjacent land, planting trees or constructing fences within the ditch easement, and changing or directing storm water flows into a ditch.

A landowner who resorts to self-help may be punished. That is, even if the landowner is confident that proposed alterations will not interfere with the ditch owner’s ability to carry water across the property, the landowner must obtain consent from the ditch owner or get approval from a court before making the alterations. The Colorado Supreme Court has directed trial judges not to hesitate to order that ditches be restored to their original condition if the landowner proceeds without following this process.