(1) Any person or corporation owning or constructing any ditch, race, drain, or flume in, upon, or across any highway shall keep the highway open for safe and convenient travel by constructing culverts, bridges, or similar structures over such ditch, race, drain, or flume. When any ditch is constructed across, in, or upon any highway, the person owning or constructing such ditch shall construct a culvert, bridge, or similar structure long enough to conduct the water from shoulder to shoulder from such road or highway or of such greater length as the board of county commissioners having jurisdiction thereover may require, plans for said culvert, bridge, or similar structure having been approved in advance by said board of county commissioners. The board of county commissioners shall maintain said culvert, bridge, or similar structure after construction, in accordance with the provisions of section 37-84-106, C.R.S.
(2) Any person or corporation who fails to construct a culvert, bridge, or similar structure across any ditch, race, drain, or flume, within a time limit to be specified by the board of county commissioners when the plans therefor are approved by said board as provided in subsection (1) of this section, shall forfeit the sum of twenty-five dollars to the county for each day of failure to construct such bridge, culvert, or similar structure together with the cost of construction thereof. Proceeds from such penalty shall be paid into the road fund of the district. It is the duty of the road supervisor of the district to construct such culvert, bridge, or similar structure if the owner of such ditch, race, drain, or flume fails to comply.
Source: L. 1883: p. 261, § 38. G.S. § 2990. L. 1885: p. 324, § 1. R.S. 08: § 5829. C.L. § 1285. CSA: C. 143, § 39. L. 47: p. 747, § 1. CRS 53: § 120-4-5. C.R.S. 1963: § 120-4-5.
ANNOTATION
Law reviews. For article, "In 'Case' You Missed It — 2020-21: Real Estate Case Law Highlights", see 51 Colo. Law. 44 (Jan. 2022).
This section applies only to ditches constructed after its passage. This is apparent from portions of the act, making it the duty of the county in which the bridge is situate to maintain the same after it is once constructed, and fixing a penalty in case the bridge is not built within five days after the ditch is constructed across the highway. Farmers' High Line Canal & Reservoir Co. v. Westlake, 23 Colo. 26, 46 P. 134 (1896); People v. Farmers' High Line Canal & Reservoir Co., 52 Colo. 626, 123 P. 645 (1912).
Section applies to highway laid out after original construction of ditch. One owning a ditch over which, subsequent to its original construction, a public highway is laid out, and which by subsequent enlargement acquires width exceeding 20 feet, must maintain, as part of the highway, a bridge at such point of intersection. People v. Farmers' High Line Canal & Reservoir Co., 52 Colo. 626, 123 P. 645 (1912).
Section only becomes applicable where a ditch crosses a highway, or at least encroaches so much upon it as to interfere with travel. It was never intended to cover cases where the ditch and the roadway are parallel for 1,000 feet. Farmers' High Line Canal & Reservoir Co. v. Westlake, 23 Colo. 26, 46 P. 134 (1896).
The enlargement of a ditch is the construction of that portion of it included within the enlargement. The widening and deepening of a ditch already constructed is the construction of that portion of the ditch included in the additional space, both width and depth covered by the enlargement. People v. Farmers' High Line Canal & Reservoir Co., 52 Colo. 626, 123 P. 645 (1912).
If owner refuses to build bridge, county may do so and recover therefor. Where the owner of an irrigating ditch refuses to construct a bridge where it crosses a public road, as he is required by statute to do, and the county constructs such bridge at its own cost, the moneys expended may be recovered by the county. People v. Farmers' High Line Canal & Reservoir Co., 52 Colo. 626, 123 P. 645 (1912).
A county's statutory obligation under subsection (1) to "maintain" culverts, bridges, and similar structures includes the obligation to replace such structures. Montezuma Valley Irr. v. Bd. County Comm'rs, 2020 COA 161, 486 P.3d 433.