(Note: The following article is offered in simplified language with respect to information on water rights for Colorado and is not to be relied upon as legal advice. If you desire legal opinion, please contact a water attorney.)
If you are buying a property that has water running through it and is of real importance to you, be sure to check all the legal rights you have to it and reasearch whether or not the shares is running with the land or is presented with a separate deed. Contact the irrigation company associated with the certain area and be aware of the available usage that is coming to the property. Just because you have shares, does not mean that you will receive you share. In other words it depends on where down the line your property is located. A valuable means of information would be to talk to the surrounding neighbors, usually they will tell you if there is a problem receiving a specified amount of water.
If Irrigation water is an important issue to your property, then by all means research, research, research!
Shares may be conveyed by quit claim deed, or special warranty deed or it may be allocated by running with the land.
A significant aspect of selling and buying ranch property in Colorado requires a detailed evaluation of water rights. By nature, a water right consists only of the right to use. In Colorado, a water right is considered real property, and therefore, is subject to the Statutes of Frauds and real property statutes of limitations; it passes as "real property" under a will, it is subject to taxation as real property, and may be mortgaged with or apart from the land where used, and may be proved in a quiet title proceeding. Therefore, since water rights are considered real property they can be bought and sold.
It is important to have an understanding of the court history of water rights. Dating back to 1876 when Colorado became a state and up to 1969, a brief overview of the court system is offered. District Courts of the different counties were adjudicating (that is presented to the court and signed by the judge) water rights but not all District Courts were adjudicating water rights. The water cases were co-mingled with all other civil action numbers (for example, murders, divorce, robberies, etc.). Water rights were filed in the District Courts in the "water district" in which they were located. Water districts covered small drainage basins within Water Divisions. In 1969, the state passed the Water Rights Determination Act. This declaration of policy created seven (7) Water Courts. One in each of the seven (7) Irrigation Divisions. The old water district boundary descriptions were eliminated and only the Water Courts were allowed to adjudicate and/or change water rights. They are: A. South Platte River Division 1 Greeley B. Arkansas River Division 2 Pueblo C. Rio Grande River Division 3 Alamosa D. Gunnison River Division 4 Montrose E. Colorado River Division 5 Glenwood Springs F. Yampa River Division 6 Steamboat Springs G. Delores River Division 7 Durango
Note: Research must take place to know the old water district in order to research records in today’s computer printouts, called Tabulations of Water Rights (These are available at the Division of Water Resources in the Division Engineer offices shown above).
In the 1969 Act, surface water rights (ditches, springs, and ponds) and ground water rights (wells) were effectively "married" into Colorado’s priority system. This was the first time most wells had been allowed into the Court and be adjudicated their position in the priority system.
The water law of Colorado is solidly based on the doctrine of prior appropriation. Simply stated, prior appropriation means the first owner is privileged with the first claim on the water. Priority is based on "First in Time, First in Right…Forever!" Provided, that a particular claimant requested that his water right be adjudicated, (that is presented to the court and signed by the judge) at the first opportunity to do so! There is no priority as to different uses. A water right for domestic purposes does not have priority over other uses. Water rights for domestic and/or municipal uses have their place in the priority system, the same as any other water right!
However, having stated this, there are exceptions and the court decrees should always be read. Wells permitted and adjudicated, as exempt domestic or commercial wells are the exception to the priority system in Colorado today!! Exempt means exempt from the priority system.
The usage of water by Colorado residents is subject to prior rights of other states by interstate compacts and U.S. Supreme Court decisions. The doctrine of prior appropriation is the basis for water law in Colorado. This doctrine is the basis of water law for most of the states west of the Mississippi River. For states east of the Mississippi River, the doctrine of riparian rights (moving body of water-stream) and littoral rights (not flowing water-lake) usually applies.
Who keeps track of the water rights owners?
In Colorado, there is no land ownership registry for water rights. The Office of the State Engineer does not have any ownership information. The process for determining which water rights go with the land is conducted by researching the deeds at the appropriate county office, gathering information at the appropriate Division Engineer office, and/or engaging a competent water attorney and water engineer. Ownership of a water right is presumed to start with the original claimant(s) of the water right who filed the application with the Court. The Court does not award water rights to individuals; the Court awards water rights to structures, i.e. ditches, wells, springs, reservoirs.
How can I find information on water rights?
Information regarding water rights and their historical use can be researched at the appropriate Division Engineer office. In order to research a particular water right, it is necessary to first know in which old water district the water right is located.
How are water rights transferred?
Water rights ownership between a seller and buyer is generally transferred by Quit Claim Deed or Special Warranty Deed. It is important to remember that a water right is a property right and therefore can be bought or sold, moved, and put to different uses without limitation so long as that change does not injure the vested rights of others.
Who is a good contact on water rights questions?
In Colorado, for additional questions on water rights, a great resource is the water commissioner in each of the seven divisions as listed previously. They are an excellent source of information on consumptive water usage, water flow measurement, field investigations, and addressing those structures that are not "in priority."
From the foregoing, it should be evident that water law is a complicated subject. It is recommended that a competent water attorney and/or water engineer knowledgeable in these fields be engaged in the evaluation of water rights
