2021 Colorado Code
Title 31 - Government - Municipal
Article 15 - Exercise of Municipal Powers
Part 7 - Public Property and Improvements
§ 31-15-709. Sewers and Sewer Systems

1. The governing body of each municipality has the power:
   1. To construct and keep in repair culverts, drains, sewers, water mains, and cesspools and to regulate their use; and to assess, either in whole or in part, the cost of the construction of sewers, water mains, and drains upon the lots or lands adjacent to and opposite the improvements in proportion to the frontage of such lots or lands abutting upon the street in which such sewer, water main, or drain is to be laid. The cost of such sewer, water main, or drain at street intersections or crossings shall be wholly paid for by the municipality. The benefit to the public generally, if any, shall be determined by ordinance and shall be assessed against such municipality, and the balance shall be assessed against the lots or lands and the owners thereof according to the frontage.
   2. To establish a system of sewerage and for that purpose to divide the municipality into districts; to impose a special assessment or tax to defray the expense of constructing such sewers upon private property within such district or upon the lots or lands adjacent to or abutting upon the street where said sewer is laid; to compel the owners of any buildings located in said district and on blocks abutting on any established sewer to connect with such sewer; to prohibit the keeping or maintaining of any vault, closet, privy, or cesspool within said district or within four hundred feet of any established sewer; and to regulate the construction, maintenance, and use of all vaults, closets, privies, and cesspools within the municipal limits and not within said prohibited districts or in proximity to an established sewer.

History. Source: L. 75: Entire title R&RE, p. 1118, § 1, effective July 1.

This section is similar to former §§ 31-12-101 (22) and 31-15-301 (1)(f) as they existed prior to 1975.

Annotator's note. Since § 31-15-709 is similar to former §§ 31-12-101 (22) and 31-15-301 prior to the 1975 repeal and reenactment of this title, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Exercise of legislative police power. A city council, in establishing a sewer district, exercises a legislative power for police purposes, having its origin in the taxing power. Wolff v. City of Denver, 20 Colo. App. 135, 77 P. 364 (1904).

Subsection (1)(a) limits the powers of municipal corporations in relation to sewers to those expressed in said paragraph and an ordinance purporting to grant to a private person an exclusive right and privilege to construct and operate a system of sewers within the limits of a municipal corporation and to collect from all persons using the same a reasonable annual compensation for connecting therewith is absolutely void, and one constructing a sewer system under such ordinance cannot maintain an action against an inhabitant of the city for the use of the same. Weaver v. Canon Sewer Co., 18 Colo. App. 242, 70 P. 953 (1902).

Ownership and control of sewers, except in the municipality, would be inconsistent with the terms of subsection (1)(a). Weaver v. Canon Sewer Co., 18 Colo. App. 242, 70 P. 953 (1902).

Judgment of city council conclusive. The judgment of the city council as to the extent of a sewer district and the properties to be included therein, when acting within the scope of the authority conferred by subsection (1)(a), is conclusive, unless it clearly appears that their action was fraudulent or unreasonable, and whoever assails the action of the city council has the burden of proof. Hildreth v. City of Longmont, 47 Colo. 79 , 105 P. 107 (1909).

Power to subject outside lands to eminent domain not implied. Under subsection (1)(a), the giving of the right to construct sewers does not also grant authority to subject outside lands to the operation of eminent domain, because such power is not implied because there is nothing in out statutes to even indicate, much less imply, such purpose. Mack v. Town of Craig, 68 Colo. 337 , 191 P. 101 (1920).

Subsection (1)(b) delegates to the city four general powers: First, to establish a sewer system and divide the city into sewer districts; second, to compel owners of buildings in a sewer district, or within 400 feet of a sewer, to connect with the sewer; third, to prohibit privies within a sewer district; and fourth, to regulate, within the city limits, privies not within a sewer district. Gault v. City of Ft. Collins, 57 Colo. 324 , 142 P. 171 (1914).

Subsection (1)(b) confers power to compel owners of buildings to connect them with the sewer. Gault v. City of Ft. Collins, 57 Colo. 324 , 142 P. 171 (1914).

But no power is given in subsection (1)(b) to compel parties to connect outside vaults or privies with the sewer. Gault v. City of Ft. Collins, 57 Colo. 324 , 142 P. 171 (1914).

The power regarding privies is to prohibit them, within the sewer district, or within 400 feet of a sewer, not to compel them to connect, if not within the prohibited district, the power then is to regulate the construction, maintenance, and use of privies. Gault v. City of Ft. Collins, 57 Colo. 324 , 142 P. 171 (1914).

Liability for ministerial acts. Whenever the duty as respects drains and sewers ceases to be legislative or judicial or quasi-judicial, and becomes ministerial, then, although there be no statute giving the action, a municipal corporation is liable to the same extent and on the same principle as a private person or corporation would be under like circumstances for the negligent discharge or the negligent omission to discharge such duty, resulting in an injury to others. McCord v. City of Pueblo, 5 Colo. App. 48, 36 P. 1109 (1894).

Applied in City of Pueblo v. Robinson, 12 Colo. 593 , 21 P. 899 (1889).