(1) Upon the refusal of owners of tracts of land through which said right-of-way is proposed to run, to allow passage through their property, the person desiring such right-of-way may proceed to condemn and take same under the provisions of articles 1 to 7 of title 38, C.R.S., concerning eminent domain.
(2) State agencies shall, to the maximum extent practicable, cooperate with persons desiring a right-of-way for water conveyance structures.
Source: G.L. § 1376. G.S. § 1715. R.S. 08: § 3169. C.L. § 1625. CSA: C. 90, § 8. CRS 53: § 147-3-3. C.R.S. 1963: § 148-3-3. L. 69: p. 1220, § 6. L. 2003: Entire section amended, p. 1367, § 2, effective April 25.
ANNOTATION
Law reviews. For article on eminent domain proceedings, see 21 Dicta 6 (1944). For article, "Revision of Water and Irrigation Statutes", see 31 Dicta 29 (1954). For comment, "Water: Statewide or Local Concern? City of Thornton v. Farmers Reservoir & Irrigation Co.", see 56 Den. L.J. 625 (1979). For comment, "Bubb v. Christensen: The Rights of the Private Landowner Yield to the Rights of the Water Appropriator Under the Colorado Doctrine", see 58 Den. L.J. 825 (1981).
Ultimate sources of the right of condemnation are § 14 of art. II, and § 7 of art. XVI, Colo. Const. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).
The prosperity of the country required that the greatest possible use of the waters should be made, and that no restrictions should exist to its appropriation, transportation and use, and the right-of-way for conveying it across the land of another was regarded as a general servitude attaching to such land ex necessitate, regardless of contract. De Graffenried v. Savage, 9 Colo. App. 131, 47 P. 902 (1897).
It will thus be seen that at an early date the court found it necessary to override and disregard technical rules of law pertaining to riparian rights in other countries, and apply our own laws, made with reference to the climate, the arid and desert character of the land without water, and its prolific fruitfulness by the application of water. De Graffenried v. Savage, 9 Colo. App. 131, 47 P. 902 (1897).
Condemnation right not dependent on supply source. The right of condemnation for purposes of obtaining a right-of-way to the point of diversion of the water right is not dependent upon whether the source of supply is characterized as a well or a spring. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).
The purpose for which land is condemned under this section is a public purpose. United States v. O'Neill, 198 F. 677 (D. Colo. 1912).
It is not incumbent upon the petitioner to show an absolute necessity for the taking. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892).
The use of an abandoned river bed on the public land for the purpose of turning water into it from a ditch to relieve the ditch of an excessive flow therein, which excessive flow might have been prevented by constructing and maintaining a suitable headgate at the proper place, or for the purpose of watering the appropriator's livestock when his own land furnished ample facilities for watering such stock, are not such necessary uses as would give the user a right-of-way through the abandoned river bed for conveying water as against a subsequent patentee of the land including the river bed. Boglino v. Giorgetta, 20 Colo. App. 338, 78 P. 612 (1904).
This section expressly provides that a proceeding to condemn shall be pursued under the statute of eminent domain. Mulford v. Farmers' Reservoir & Irrigation Co., 62 Colo. 167, 161 P. 301 (1916).
This section grants and limits the right to enter upon and use the property of another for the very purpose for which the power of eminent domain may be exercised, and such exercise under the general provisions of the statutes relating to that subject affords the appropriate and only way for securing the rights granted by this section. Broadmoor Land Co. v. Curr, 133 F. 37 (8th Cir. 1904).
When water transportation facility constructed without acquiring easement, landowner limited to temporary relief. When a facility for the transportation of water is constructed or utilized by one having the right of eminent domain, without prior acquisition of an easement, the remedy of the landowner is limited to temporary relief, pending conduct of the eminent domain proceedings by the owners of the water right. Bubb v. Christensen, 200 Colo. 21, 610 P.2d 1343 (1980).
The mere fact that parties constructing an irrigating ditch have become incorporated does not entitle the ditch to exemption from the operation of this section. Sand Creek Lateral Irrigation Co. v. Davis, 17 Colo. 326, 29 P. 742 (1892).
Where it was contended that because the contemplated canal of the petitioner was parallel for many miles with the canal of the defendant company, and therefore greatly damaged it, that the right to proceedings under this section did not exist, this contention is without support in law or reason, because no authorities are presented which intimate that the construction of one canal is sufficient reason to prohibit the construction of another because it runs parallel with the first, and if the rule would obtain it would result in the creation and continuation of a monopoly against which the constitution of our state and the statutes are directly aimed. San Luis Land Canal & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 P. 860 (1893).
Applied in Thompson v. De Weise-Dye Ditch & Reservoir Co., 25 Colo. 243, 53 P. 507 (1898); Tegeler v. Schneider, 49 Colo. 574, 114 P. 288 (1911).