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Commentary and Analysis Regarding Colorado Law

Good Fences Make Good Neighbors … Until They Don’t.

fence
boundary marker

Some of the most contested lawsuits pit neighbor against neighbor, arguing over who owns what small strip of seemingly valueless land. Sometimes one neighbor argues the fence is a foot over the lot line; other times, a neighbor puts up a fence in the middle of the night. Tensions flare, and weeks later, everyone is at the lawyers’ offices armed for bear.  Many months and thousands of dollars later, a District Court Judge decrees where the true lot line rests.  Maybe a fence moves, maybe it doesn’t, maybe a deed gets recorded.  Whether you win or lose, everyone spent a fortune and no one is happy.  

From the outside, boundary disputes seem like the most petty, unreasonable lawsuits you could imagine. However, sometimes they’re legitimate. Most Colorado towns were founded in the 1800’s.  Original surveys were often made using large, heavy chains to measure distances. Old surveys frequently marked boundaries as starting at the “large cottonwood tree” or “the stone fence post,” features that have long-since vanished. Survey chains were particularly bad at measuring over uneven  terrain, let alone foothills or mountains. Further uncertainty comes with modern surveying tools, such as GPS and laser scanning, called lidar.  Applying such accurate modern techniques to the verbiage of legal descriptions from the 1800’s is sometimes comical. Some towns, such as Leadville, find errors so great that one person’s house might be located on another person’s lot.  

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Use it or Lose it

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“Use it or lose it” is often colloquially used to describe the prior appropriation doctrine for water rights in Colorado.  Nowhere is that phrase more accurate than when it comes to the decennial abandonment list.  CRS § 37-92-401(1)(a) requires the Division Engineer to maintain a tabulation of water rights and priorities in their Water Division, but also to “prepare decennially, no later than July 1, 1990, and each tenth anniversary thereafter, a separate abandonment list comprising all absolute water rights that he or she has determined to have been abandoned in whole or in part and that previously have not been adjudged to have been abandoned.”  The next issuance of this decennial abandonment list will happen in 2020, and there are some important considerations of which water users should be aware before that list is issued.

Water rights can be abandoned in whole or in part.  The Division Engineers office may physically inspect diversion structures and/or diversion records, if kept, to determine if water rights have actively been used over the past ten years.  They may be placed on the abandonment list if they haven’t been used at all, but also if they have only been used in amounts less than the decreed amount. In addition to non-use, the water right owner must intend to abandon the right.  See CRS § 37-92-103(2), also Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982). This is a very important element to note in the abandonment process, as the burden is on the water right owner to show they did not have an intent to abandon, if they wish to have their water rights removed from the list. Pursuant to CRS § 37-92-103(5)(a), any water right owner who wishes to protest inclusion of their water rights on the abandonment list must file a protest no later than “June 30, 1992, or the respective tenth anniversary thereafter” (so for the upcoming 2020 abandonment list, no later than June 30, 2022).  The forms for protesting inclusion of water rights on the abandonment list can be found here: https://www.courts.state.co.us/Forms/Forms_List.cfm?Form_Type_ID=10

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515 Kimbark Street, Second Floor
Longmont, CO 80501
Phone: 303-776-9900 
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363 Centennial Parkway, Suite 110
Louisville, CO 80027
Phone: 720-726-3670 
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Fort Collins, CO 80525
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