The right to a ditch easement is recognized under the Colorado Constitution and statutory law. The Colorado Supreme Court has held a ditch easement includes the rights to “inspect, operate, maintain and repair the ditch” and the rights of ingress and egress over the burdened estate.
A ditch easement can arise by condemnation, grant or prescription. When an easement arises by grant, one must look to the document creating the easement to establish the rights of the dominant and servient estates. If the document is silent regarding maintenance, the owner of the easement has the right to maintain it. When an easement arises by prescription, history plays a role in determining the dominant estate’s maintenance rights but is not dispositive.
Absent a writing setting forth the dimensions of the right of way, the easement extends to the bed of the ditch with sufficient ground on either side to operate the ditch properly, depending on the particular circumstances. As long as the owner of the ditch easement does not expand the easement, the owner can do “whatever is reasonably necessary” to maintain the ditch. The owner of the ditch easement may do whatever is reasonably necessary to permit “full use and enjoyment of the easement including the exercise of rights of ingress and egress for maintenance, operation, and repair.” It is not trespassing to enter land to maintain a ditch. But the owner of the easement cannot put a greater burden on the land than that which existed when the ditch was constructed or was reasonably necessary to operate it. At the same time courts have recognized the right to modernize the methods and tools of maintenance.
The owner of the burdened estate may also make certain uses of the easement as long as he or she does not “damage the ditch or unreasonably inhibit the benefited estate owner’s ability to maintain the ditch.”
Ditch companies not only have the right to maintain ditches, but also the duty. Willful interference with a company’s ditch or road easement is a misdemeanor and gives rise to damages and costs in the event of a suit.
Colorado courts have recognized particular ditch maintenance rights. The holder of the ditch easement may operate machinery and other appliances and may remove obstructions. The holder of the easement may travel on the access road and spray and burn weeds. It may use a dragline to remove weeds and vegetation to retain the normal grade and cross section of the ditch. It may clean ditches of silt.
Courts in other states also have recognized specific ditch maintenance rights. The Supreme Court of Montana found that installation of a culvert and bridge across a ditch by a property owner unreasonably interfered with the ditch company’s maintenance rights because it made bringing in a bulldozer difficult. The Supreme Court of Washington ordered a property owner to remove trees and sprinklers within 20 feet of a lateral centerline to allow the ditch company to safely bring in and operate backhoes, slopers, and mowers. The Supreme Court of Idaho held a ditch company could clean the ditch and put the dirt on the banks as long as the ditch wasn’t enlarged or deepened. An appellate court in New Mexico ordered a property owner to remove a fence that interfered with operation of a tractor and other ditch-cleaning equipment.
As the case law from Colorado and other jurisdictions shows, the right to do “whatever is reasonably necessary” should encompass all normal ditch maintenance. Ditch riders may drive along the ditch to open head gates and to monitor the ditch. If there is a problem with water flow, they may use equipment necessary to repair leaks or open blockages. The removal of weeds and other debris from the ditch should be considered reasonably necessary. Burning brush should be allowed. The ditch company is allowed to use heavy equipment as necessary but not to increase the historical burden on the land. The company is allowed to adjust flows and to maintain embankments. If a landowner sets up an obstacle or obstruction in the easement, such as a gate, bridge or trees, the question will be whether it unreasonably interferes with maintaining the ditch. A wise course is to investigate the circumstances before removing the obstacle. Whether extraordinary activities are allowed as part of maintenance will depend on the circumstances of the case and a balancing of the servient owner’s rights. In the Shrull case, cited above, the court approved blasting to open a ditch, but in that case there was a history of opening the ditch with explosives. Swampy land prevented the use of heavy equipment. If the land had been dry, the court might have required a different method for opening the ditch. Activities that are the standard in the industry will likely be found reasonable and necessary.
A ditch company may do whatever is reasonably necessary to maintain its ditch as long as it does not expand the burden on the servient owner’s estate. In considering activities of the servient estate owner that interfere with the ditch company’s maintenance rights, courts will weigh whether the interference is reasonable or unreasonable given the property owner’s right to a noncompeting use of the easement.
From: Ditch Company
To: Ditch Rider
Re: Right to Maintain the Ditch
As a ditch rider, you have the right to do whatever is reasonably necessary to inspect, operate, repair and maintain the ditch as long as you do not expand the ditch bed or the historical burden on the land. The ditch company’s right of way extends from the ditch bed to sufficient ground on either side of the ditch to operate the ditch properly. You have the right to drive along the ditch in the right of way to operate, inspect and monitor the ditch, to perform maintenance, and to repair the ditch. If necessary, you can bring in appliances and equipment, including heavy equipment. You can remove obstructions from the ditch and the right of way. However, if an obstruction, such as a gate, a tree, or a bridge, does not unreasonably interfere with your ability to access or maintain the ditch, it should not be removed. If you believe it does interfere, you should consult with the company before removing it. You may clean ditches of silt. You can remove weeds (by spraying or burning) and other vegetation and debris from the ditch. If there is a problem with water flow you may do whatever is reasonably necessary to plug leaks or open blockages. The company and you have the right and obligation to maintain the ditch including the embankments. If you are uncertain whether certain actions are permissible, always check with the ditch company.