Private right of condemnation: Necessary or outdated?
“Water is sacred in Colorado. It allows cities to flourish, crops to grow and powers the state’s tourism industry. Its power extends to the Colorado Constitution, which gives landowners the unique ability to condemn another’s property to acquire a right-of-way to construct “ditches, canals and flumes for the purpose of conveying water for domestic purposes,” and for irrigation, mining, manufacturing and drainage, “upon payment of just compensation,” according to Colo. Const. Art. 16 § 7. In other words, a power that typically is reserved for the government – the power of eminent domain – is extended to private landowners to allow water to flow freely.
The Colorado Court of Appeals recently was called upon to interpret the scope and continuing vitality of this right. In CAW Equities v. City of Greenwood Village, the Court of Appeals determined, in a case of first impression, that Colorado’s right of private condemnation was not unlimited, and a private landowner could only condemn publicly used land to construct an irrigation canal in extraordinary circumstances. The CAW Equities decision will serve to limit a landowner’s right of private condemnation. The case also calls into question the continuing vitality of the right to private condemnation.”
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Sugden, Ryan. Colorado Real Estate Journal 6 June 2018.