A recent decision of the Colorado Supreme Court focuses on the issue of when the owner of a parcel of land can move the location of a neighbor’s easement (for an irrigation ditch) that goes across the parcel owner’s land.  The opinion is important because it considers the apparently conflicting court opinions of the past, in the context of current development pressures and recognizes the need for a clear ruling on this topic.
     However, before discussing the ruling itself, it is important to address some basic concepts of rural land ownership.  First, although it is possible for a landowner to hold all of the property rights related to the landowner’s parcel of land – the water rights, the mineral rights, the surface rights, and the air rights – such is far from the norm.  In fact, most properties are burdened by easements for power lines, communication lines, irrigation ditches, access rights-of-way, and similar property rights, held by others. 
     In addition to such easements, which are usually recorded in the land records, there may be other rights that impinge on someone’s full ownership.  A neighboring rancher may have acquired, by adverse possession, a right to cross a corner of the neighboring property, for moving cattle and for moving hay equipment and irrigation water.  Also, the rancher may have acquired a portion of neighboring land, by virtue of a fence line that has marked the extent of the rancher’s use of the neighboring property for a period in excess of 18 years.
     It was not too long ago that disputes over these types of property rights were relatively rare in northwest Colorado.  Families owned their properties for long periods of time, and the value of working with neighbors to solve common problems far outweighed the costs of fighting over whether a fence line should be ten feet one way or the other.  Also, landowners knew the history of a particular irrigation ditch – who built it, who had ownership rights to it, who maintained it, and who had the senior water rights to draw from the ditch on a dry summer.  They knew that the fence had been placed just over the ridge, for the convenience of maintenance by both neighboring owners, in spite of the fact that the surveyed boundary was actually along a steep hillside.
     With plenty of land, adequate water, low rural real estate values, and slow turnover of ownership, serious disputes were few.  However, in recent years, the demographics of property ownership have changed, led by greater demand and higher costs.  Access easements, water rights and fence lines now provide fertile ground for disputes and for litigation.  Ranchers, who would have eschewed a court proceeding twenty years ago, now recognize the necessity of litigation to protect their property rights.
     The fact setting considered by the Colorado Supreme Court arose in Pitkin County when an uphill agricultural property was acquired by the Roaring Fork Club, L. P., and the “Club” began developing a golf course and private fishing area.  In order to develop its recreational facilities, the Club started relocating the three irrigation ditches that crossed its property and provided water to the neighboring ranch.  The owners of the ranch filed suit against the Club, for trespass and for damages to the ranch’s easements for the transmission of water.
     

Next Week, I will discuss the ruling of the Colorado Supreme Court in this case.

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