It is the duty of every such person, taking water from any ditch, canal, or reservoir, to be used for irrigation purposes, on finding that he is receiving more water from such ditch, canal, or reservoir, either through his headgate or by means of leaks, or by any means whatsoever, immediately to take steps to prevent his further receiving more water from such ditch, canal, or reservoir than the amount to which he is entitled. If knowingly he permits such extra water to come upon his land from such ditch, canal, or reservoir, and does not immediately notify the owners of such ditch or take steps to prevent its further flowing upon his land, he shall be liable to any person, company, or corporation who may be injured by such extra appropriation of water, for the actual damage sustained by the party aggrieved. The damages shall be adjudged to be paid, together with the costs of suit, and a reasonable attorney's fee to be fixed by the court and taxed with the costs.
Source: L. 1887: p. 312, § 2. R.S. 08: § 3261. C.L. § 1740. CSA: C. 90, § 138. CRS 53: § 147-7-26. C.R.S. 1963: § 148-7-25.
ANNOTATION
Plain language of this section concerns injury related to the receipt of excess water. This section does not concern flooding or excess runoff onto someone else's land. Byers Peak Props. v. Byers Peak Land & Cattle, 2026 CO 7, 583 P.3d 97.
Purpose of provisions. Section 37-84-124 and this section are directed at prevention of diversions which exceed the decreed rate of diversion and are not intended to prohibit out-of-priority diversions. Se. Colo. Water Conservancy Dist. v. Rich, 625 P.2d 977 (Colo. 1981).
In an action for damages for being denied use of water in irrigation canal as result of alleged wrongful acts of named defendants, and for injunctive relief, wherein during the course of the trial plaintiffs tendered an amended complaint which included a request that attorneys' fees be assessed against defendants in addition to costs for the sole purpose of bringing the action under the provisions of this section, it was held that this section did not apply to the situation. Bicknell v. Vollmuth, 112 Colo. 207, 147 P.2d 478 (1944).