Summary
applying law of natural easements to claims of trespass and nuisance involving water from irrigation ditch
Summary of this case from Bittersweet Farms v. ZimbelmanOpinion
Dec. 17, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 661
H. G. Howard, in pro. per.
Hill & Hill, Alden V. Hill, Fort Collins, for defendants-appellees.
ENOCH, Judge.
Plaintiff H. Gordon Howard commenced this action in 1971, alleging that defendant Cactus Hill Ranch Co. had created a nuisance and had trespassed on land that plaintiff held as trustee. Plaintiff appeals from a judgment entered in favor of defendant. We affirm.
Plaintiff holds title to a portion of the northwest quarter of a section of land in Weld County, which land is adjacent to land owned by defendant in the northeast quarter of that section. The part of plaintiff's property involved in this litigation is a 25 foot strip along plaintiff's southern boundary. In 1906 a third party deeded this strip to the Fort Collins Railway Co. as a right-of-way, reserving a reversionary interest in the grantor, his heirs, and assigns, should the railroad line along the length of the strip be permanently abandoned. Plaintiff's mother subsequently acquired the reversionary interest and it was ultimately transferred to plaintiff, in trust for his wife and children. In 1970 the railway company's successor in interest abandoned the railroad line, vesting plaintiff's reversionary interest.
Plaintiff alleged that defendant trespassed and created a nuisance by constructing and utilizing an irrigation ditch along the length of the right-of-way strip. The principal defense asserted by defendant was that any water it discharged from its property along the strip was pursuant to a lawful easement.
After trial to the court, the court found that three was a natural and historical drainage of water from defendant's higher land over the length of the old right-of-way. The court concluded that defendant held a lawful right-of-way for drainage over plaintiff's land through both natural and prescriptive easements and ordered judgment for defendant. Plaintiff asserts that there was insufficient evidence for the court to find that there existed a prescriptive easement or an easement by necessity, and that easements cannot be acquired against reversionary interests or against railroads as a matter of law.
The owner of upstream property possesses a natural easement on land downstream for drainage of surface water flowing in its natural course. Ambrosio v. Perl-Mack Construction Co., 143 Colo. 49, 351 P.2d 803. The law will protect this interest provided that the upstream owner does not change the natural flow of water in such a way as to do more harm than formerly to downstream properties. Hankins v. Borland, 163 Colo. 575, 431 P.2d 1007. The evidence supports the court's conclusion that the drainage in the old right-of-way is a natural flow and plaintiff failed to establish that defendant made any detrimental change in the natural flow. Hence, the court's finding of natural easement is supported by the evidence and is binding on review. Ambrosio v. Perl-Mack Construction Co., Supra.
Also, we find no merit in plaintiff's contention that defendant committed a trespass in the digging and maintaining of the ditch. Though the court did not determine who dug the ditch, it did find from the evidence that the ditch had been in existence over 20 years which was contrary to plaintiff's claim that it had been dug recently. Thus, the ditch was in existence prior to the time that plaintiff acquired title to the right-of-way and prior to the time defendant acquired title to the dominant land.
It has been held that where a ditch has been in existence for 'any appreciable time,' consent to its original construction is presumed. Leonard v. Buerger, 130 Colo. 497, 276 P.2d 986. Thus, assuming that the ditch was dug over 20 years ago, there is no evidence that there was any objection at that time, and consent is presumed. The servient landowner cannot, more than 20 years later, withdraw that consent or deny the right of maintenance. Leonard v. Buerger, Supra. Furthermore, the defendant, as the dominant landowner, has the right to enter upon the servient land to maintain a ditch for natural drainage. Shrull v. Rapsardi, Colo.App., 517 P.2d 860.
Plaintiff argues that a natural easement cannot be asserted against a landowner who has derived his property ownership through the vesting of a reversionary interest. Some jurisdictions disallow the creation of prescriptive easements which would adversely affect a person's reversionary interests prior to the time of vesting. See 28 C.J.S. Easements s 9. However, natural easements exist independently of easements acquired by adverse possession, and rules relative to prescriptive rights are inapplicable when determining the existence of a natural easement. See Hankins v. Borland, Supra.
Plaintiff also asserts that natural easements cannot exist to the detriment of railroads. We disagree. See Stafos v. Missouri Pacific R.R., 367 F.2d 314 (10th Cir.); Eimers v. Cleveland, Cincinnati, Chicago & St. Louis Ry., 158 Ill.App. 577. Further, that issue is immaterial to the disposition of this appeal, since neither party contends that any railroad now has an interest in this property.
Since we agree with the court's finding of a natural easement, we need not consider the question of whether it was also a prescriptive easement. Plaintiff's other assertions are also immaterial to the present cause.
Judgment affirmed.
SILVERSTEIN, C.J., and BERMAN, J., concur.