2021 Colorado Code
Title 37 - Water and Irrigation
Article 87 - Reservoirs
§ 37-87-104. Liability of Owners for Damage

1. Any provision of law to the contrary notwithstanding, no entity or person who owns, controls, or operates a water storage reservoir shall be held liable for any personal injury or property damage resulting from water escaping from that reservoir by overflow or as a result of the failure or partial failure of the structure or structures forming that reservoir unless such failure or partial failure has been proximately caused by the negligence of that entity or person. No entity or person shall be required to pay punitive or exemplary damages for such negligence in excess of that provided by law. Any previous rule of law imposing absolute or strict liability on such an entity or person is hereby repealed.
2. No such entity or person shall be liable for allowing the inflow to such reservoir to pass through it into the natural stream below such reservoir.
3. 1. shall not be deemed to impose any liability upon a member of the board of directors, an officer, or a stockholder of the owner of a reservoir beyond that provided in section 7-42-118, C.R.S.
   2. An adequate substitute for such insurance may be in the form of:
      1. A good and sufficient bond, in an amount equal to such recovery limitations duly executed by a qualified corporate surety approved by the commissioner of insurance, conditioned upon the payment by the entity or person who owns, controls, or operates a water storage reservoir of any valid and final judgment for damages imposed within the judgment limitations established in this subsection (3);
      2. A good and sufficient escrow of acceptable securities, as defined in section 24-91-102, C.R.S., or an annual irrevocable letter or annual letters of credit issued by any national or state bank or any bank for cooperatives as chartered under Title III of the federal ”Farm Credit Act of 1971“, as amended, and deposited with an escrow agent pursuant to an escrow contract or agreement requiring the escrow agent to pay from the escrow account amounts necessary to discharge a valid and final judgment for damages within the limits established in this subsection (3). Such escrow contract or agreement shall provide that it cannot be revoked or amended until after any claims for damage against such entity or person have been discharged or until applicable statutes of limitations pertaining thereto have expired.
      3. A combination of insurance and any of the substitutes described in this paragraph (b).

History. Source: L. 1879: P. 107, § 40. G.S. § 1726. R.S. 08: § 3204. C.L. § 1684. CSA: C. 90, § 82. CRS 53: § 147-5-4. C.R.S. 1963: § 148-5-4. L. 81: Entire section R&RE, p. 1778, § 1, effective May 27. L. 84: (1) and (2) amended and (2.5) added, p. 963, § 3, effective April 30. L. 85: (2) amended, p. 1157, § 1, effective June 6. L. 86: Entire section R&RE, p. 1091, § 1, effective May 16. History. Source: L. 1879: P. 107, § 40. G.S. § 1726. R.S. 08: § 3204. C.L. § 1684. CSA: C. 90, § 82. CRS 53: § 147-5-4. C.R.S. 1963: § 148-5-4. L. 81: Entire section R&RE, p. 1778, § 1, effective May 27. L. 84: (1) and (2) amended and (2.5) added, p. 963, § 3, effective April 30. L. 85: (2) amended, p. 1157, § 1, effective June 6. L. 86: Entire section R&RE, p. 1091, § 1, effective May 16.

For the federal ”Farm Credit Act of 1971“, as amended, see 12 U.S.C. § 2001 et seq.

Analysis

• I. GENERAL CONSIDERATION.
• II. EXTENT OF OWNER'S LIABILITY.

Law reviews. For article, ”Water for Oil Shale Development“, see 43 Den. L.J. 72 (1966). For comment on Barr v. Game, Fish & Parks Comm'n, see 50 Den. L.J. 381 (1973). For article, ”1986 Colorado Tort Reform Legislation“, see 15 Colo. Law. 1363 (1986). For article, ”The New Dam Safety and Dam Construction Regulations“, see 18 Colo. Law. 1097 (1989).

This section is simply an affirmation of a common-law principle, which was enacted in this state as part of an act with reference to irrigation, and in this act the right is given for the construction of reservoirs for certain purposes, and the context indicates, we think, that the paragraph relied upon was inserted as a precautionary measure, under the apprehension that without it, it would be possible to place such a construction upon the act as would relieve owners of reservoirs from liability for leakage and overflow. Sylvester v. Jerome, 19 Colo. 128 , 34 P. 760 (1893).

The common-law principle referred to as being affirmed by this section is as follows: ”The person who, for his own purposes, brings on his own land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his own peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape, but he can excuse him self by showing that the escape was owing to the plaintiff's default; or, perhaps, that the escape was the consequence of vis major, or the act of God“. Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285 , 110 P. 79 (1910).

The purpose of this section and § 37-87-113 is to protect persons owning property below the reservoir from having their situation impaired, not from having it improved. Ireland v. Henrylyn Irrigation Dist., 113 Colo. 555 , 160 P.2d 364 (1945).

The statute does not deprive a court of equity of jurisdiction to restrain the filling of a reservoir, when the remedy at law given by the section is not adequate to a particular exigency. Sylvester v. Jerome, 19 Colo. 128 , 34 P. 760 (1893).

A writ commanding the defendants to refrain from diverting water did not forbid the repairing or changing the reservoir so as to prevent the injury complained of, and when ever it was so changed they were at liberty to apply to the court for a modification or dissolution of the injunction. Sylvester v. Jerome, 19 Colo. 128 , 34 P. 760 (1893).

The natural hillside or mesa, against which the embankment is constructed, and which aids in impounding the water, is part of the reservoir, within this section, and the owner is liable for injuries occasioned by its giving way, though the artificial embankment remains. Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285 , 110 P. 79 (1910).

The general assembly did not intend that one who appropriates a natural bank as part of his reservoir should be exempt from liability in the event of its washing out, but did intend the word ”embankment“ should include not only an artificial barrier, but a natural one as well, if used as a part of the reservoir, to prevent the escape of water. Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285 , 110 P. 79 (1910).

It is true that the ditch owners have been held to the exercise of ordinary care only, for the statute does not hold them to an absolute liability, but there is a very good reason for the legislative distinction, a ditch carrying water can, by the exercise of ordinary care, be rendered harmless, and the carrying of water through ditches is not a dangerous or menacing vocation; the water is not restrained, and the pressure is but slight, while in a reservoir the water is restrained, and the pressure is very great, so great that the exercise of the greatest amount of care and skill may not prevent the water from effecting its escape. Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285 , 110 P. 79 (1910); Beaver Water & Irrigation Co. v. Emerson, 75 Colo. 513 , 227 P. 54 (1927).

A recovery for past, present and prospective damages is a bar to an action for subsequent damages. Fort v. Bietsch, 85 Colo. 176 , 274 P. 812 (1929).

Although a judgment in an action for damages may have been void or voidable, the successful party by accepting and retaining its fruits, is estopped from again suing for the same thing. Fort v. Bietsch, 85 Colo. 176 , 274 P. 812 (1929).

The owner of a reservoir acquires no vested right to have spillways of reservoirs on the stream above his storage basin maintained at the same size and elevation as constructed at the time he acquired his storage rights. Ireland v. Henrylyn Irrigation Dist., 113 Colo. 555 , 160 P.2d 364 (1945).

The defendant dam owner, enlarging spillway, held not liable for injury to reservoirs by flood waters. Ireland v. Henrylyn Irrigation Dist., 113 Colo. 555 , 160 P.2d 364 (1945).

Public entities are not subject to the strict liability imposed by this section, and are therefore also exempt from common law strict liability because the legislature intended to repeal existing common law that might make public entities strictly liable. Kane v. Town of Estes Park, 786 P.2d 412 (Colo. 1990).

Under this section, owners of reservoirs are made liable for all damages arising from leakage or overflow of the waters therefrom or by floods caused by breaking of their embankments. Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60 , 234 P. 1059 (1925).

No skill, care, or diligence, in construction or maintenance relieves owners at reservoirs made liable. Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285 , 110 P. 79 (1910).

The owner is liable whether he is negligent or not and whether the breaking of his dam was caused by the negligence of a third person or not. Beaver Water & Irrigation Co. v. Emerson, 75 Colo. 513 , 227 P. 547 (1924).

The true rule of law is, that the person who, for his own purposes, brings on his own land and collects or keeps there anything likely to do mischief if it escapes, must keep it at his own peril; and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. Cass Company-Contractors v. Colton, 130 Colo. 593 , 279 P.2d 415 (1955).

Colorado cases have followed the doctrine of absolute liability for certain dangerous enterprises, such as the impounding of waters, and this was based on the common law which later became embodied in this section. Cass Company-Contractors v. Colton, 130 Colo. 593 , 279 P.2d 415 (1955).

An act of God or the public enemy is a good defense in an action under this section, even though the liability imposed thereby is fixed by statute, without regard to negligence of the defendants. Ryan Gulch Reservoir Co. v. Swartz, 77 Colo. 60 , 234 P. 1059 (1925); Barr v. Game, Fish & Parks Comm'n, 30 Colo. App. 482, 497 P.2d 340 (1972).

In order for a flood to come within the term, ”act of God“, and therefore be a good defense under this statute, it must have been so unusual and extraordinary a manifestation of nature as could not under normal conditions have been reasonably anticipated or expected, and an”act of God“ does not necessarily mean an operation of natural forces so violent and unexpected that no human foresight or skill could possibly have prevented its effect, it is enough that the flooding should be such as human foresight could not be reasonably expected to anticipate and whether it comes within this description is ordinarily a question of fact. Barr v. Game, Fish & Parks Comm'n, 30 Colo. App. 482, 497 P.2d 340 (1972).

Where the court found that with modern meteorological techniques, a maximum probable storm is predictable and a maximum probable flood is foreseeable, and the storm and flood which occurred were less than maximum, the defense of ”act of God“ is not available. Barr v. Game, Fish & Parks Comm'n, 30 Colo. App. 482, 497 P.2d 340 (1972).

An owner is defined in law to be, ”He who had dominion over a thing which he may use as he pleases except as restrained by the law or by an agreement“, and ”includes any person having a claim or interest in real property, though less than an absolute fee“. Larimer County Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 P. 1111 (1893).

The intention of the general assembly was to hold responsible the parties whose duty it was to construct and maintain, and to construe the statute otherwise would defeat the legislative intent, and might in any instance prevent redress to the injured party. Larimer County Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 P. 1111 (1893).

The responsibility is laid only upon the owners of reservoirs which store water for irrigation. This right of storage includes surface or flood waters, as well as waters diverted from a natural watercourse. Canon City & C. C. R. R. v. Oxtoby, 45 Colo. 214 , 100 P. 1127 (1909).

A prima facie case is made when the damage and cause, by the breaking, are established. Larimer County Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 P. 1111 (1893).

It is not necessary to allege and prove negligence. Larimer County Ditch Co. v. Zimmerman, 4 Colo. App. 78, 34 P. 1111 (1893); Garnet Ditch & Reservoir Co. v. Sampson, 48 Colo. 285 , 110 P. 79 (1910).

Where defendants created large bodies of liquid tailings upon their land and thus were statutorily obligated to prevent the escape of these materials and their failure to contain these harmful and obnoxious materials results in their being liable for the resultant damages, regardless of fault on their part, because liability for damage which directly results from floods is fixed by this section. Freel v. Ozark-Mahoning Co., 208 F. Supp. 93 (D. Colo. 1962 ).