The Colorado Supreme Court has put property owners on notice that the ways of the wild west – engaging in self-help when confronted with a land conflict – will no longer be viewed as acceptable by the Colorado courts.  In fact, such self-help actions, particularly where they are done in “bad faith,” may result in substantial costs and damages being levied on the offending property owner.

  When confronted recently with a case where an uphill property owner modified irrigation ditches serving the neighboring downhill ranch, the Colorado Supreme Court recognized the need for setting some clear rules.  To do so, Justice Rebecca Kourlis (formerly a District Court Judge in Routt and Moffat Counties) reviewed historical Colorado practices, decisions from other courts around the country, and the precedents (previous cases) from the Colorado courts. This was all done in the context of current realities in Colorado, where development pressures are impacting agricultural operations in a number of ways.

  The specific case arose in Pitkin County, in the mid – 1990’s, in a classic case of conflict between resort development and agriculture uses on adjacent properties.  The new owner was constructing a club for golf and fishing, and modified three different ditches to accommodate its development.  It made these modifications after it was unable to reach an agreement with its neighbor.  After the changes were unilaterally made by the club, the downstream agricultural owner filed suit for trespass to its easements, seeking injunctive relief and money damages.

  The Court discussed the importance of irrigation ditches to the development of Colorado:

  Ditches are important to Colorado.  They permit a landscape,            economy, and history in which fertile valleys prosper.  Without them, properties adjacent to or distant from a watercourse wither. Colorado is not a riparian state in which only those lands adjacent to the streams and rivers have rights to waters.  Rather, as early as the tenure of the territorial legislature, our lawmakers recognized that our arid climate required the creation of a right to appropriat 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 Company, 36 P.3^rd 1229, 1231 (Colo. 2001).

  The Court also discussed the general property rights rule that neither the holder of an easement nor the owner of the underlying property can relocate an easement without the agreement of both.  However, this general rule has been modified in Colorado by past appeals court decisions which have permitted the owner of the underlying property, in certain circumstances, to move the easement.  Further, some courts and legal commentators have encouraged courts to allow the underlying property owner more latitude with respect to moving an easement, so long as the rights of the easement holder are not materially changed.  Finally, recent trends in the law encourage a result where both property owners, even where they cannot agree, get to maximize their use of their respective properties. 

  When the Court returned to its review of the facts of the Pitkin County case, it confirmed the conclusion of the trial court that the owner of the club property had acted improperly – engaging in negotiations and then, when those failed, acting on its own in a manner that impacted the neighbor’s ditch (property) rights.  Based upon this conclusion, the Court stated that the proper action for the club would have been to either reach an agreement with its neighbor or if that failed, to file a declaratory judgment with the court, seeking permission from the court for its proposed modifications to the ditch.

          In summary, the Colorado Supreme Court has set forth a new rule for dealing with the person who has an easement across your property, who may be your neighbor.  The rule is that, if you cannot reach agreement with your neighbor, your recourse is to the courts and not to taking action on your own.  If you are unable to reach agreement and you act on your own, you are subject to such penalties as the court may impose.  In the Pitkin County case, the Supreme Court returned the case to the trial court for the judge there to impose such sanctions as that court finds to be appropriate, in accord with this new ruling.

           If you would like to write an Agriculture Column, or have a topic you would like to have considered, please contact Rich Tremaine, Secretary for the Community Agriculture Alliance Board, at 879-5003.