So you’ve just bought a piece of property with a lovely creek or irrigation ditch running through the middle of it. This water feature not only adds aesthetic appeal to your property, but gives you plenty of options for enhancement through watering, creating a pond or even to build a bridge across it to an idyllic outdoor living space, right?
The answer is, more likely than not, wrong. Just because the water flows across your property does not mean you have any specific rights to it. Chances are, that water belongs to someone else, and diverting or impeding its flow places you in legal jeopardy.
Colorado water law evolved from the realities of mining and ranching and is based on the doctrine of prior appropriation: Whoever was the first to file for a diversion right on any given water course has the priority right to that water. In times of deficient flows, holders of subsequent, junior rights must yield their water to the senior holder first.
Given the arid nature of Colorado, and the West in general, by the late 1800s most of the stream flows in Colorado had been appropriated. Certainly, in the Arkansas Valley all native flows have been appropriated, meaning someone, usually downstream, owns that water. For today’s property owners without a specific surface water right, this means you can look, but you’d better not touch.
Actually, the latter part is not strictly true. A property owner is entitled to dangle their feet in it to cool off on a hot summer’s day or allow their animals access to drink directly from the flow. They cannot pump, divert or in any other way use or impede the water’s flow.
Additionally, if the water in question is in the form of an irrigation ditch, the property owner cannot build any structure, or otherwise impede access to the ditch, generally to a distance of 30 feet either side of the center of the ditch. This is because the ditch owners have the right to access the ditch at any time for maintenance or repair work. This can include the use of machinery such as a backhoe where necessary. Consequently, ditch owners can get a little frustrated when they turn up to remove a fallen cottonwood from their ditch only to find a lovely patio complete with outdoor kitchen and foot bridge impeding their access.
At the end of the day, everybody wants to be a good neighbor. The best way to ensure this is, prior to purchasing a property with an irrigation ditch or stream flowing through it, talk to your prospective neighbors.
Find out in advance what their and your rights and needs are. Talk to the ditch owners, or the ditch company, if the ditch is so owned. A little prior knowledge and communication can go a long way toward the full and proper enjoyment of your rural property.