Water Drainage Easements

Although water is precious in the West, it can also be destructive, especially during flooding. Properties within flood zones are particularly vulnerable. The 2013 flood event along the Colorado Front Range demonstrated that. Certain property rights associated with water flow can come into play when property is adversely affected by flooding.

There is a body of law that addresses certain rights related to water by way of “drainage easements.”  An easement is a right of use over the property of another. A drainage easement is similar to other easements in that it generally applies to particular parcels of property, and it defines parcel owners’ rights when water flows from one parcel to another.

As with access easements, there are both express and implied drainage easements. They can be established in several ways: (1) by an instrument of conveyance such as an easement deed; (2) by a dedication in a subdivision plat or an engineered drainage plan associated with a subdivision; or (3) by common law; that is by appellate court rulings. The latter two types give rise to most disputes.

Colorado has always followed the ‘civil law rule:’ the owner of upstream property (the dominant estate)  possesses a natural easement on land downstream for drainage of water flowing in its natural course. The upstream property owner has the right to enter the downstream property (the servient estate) to maintain drainage.

Both upstream and downstream owners have rights regarding how water flows across their properties. Neither may alter the flow of water on their own land in a way that will affect the flow across others’ property. An upstream owner might make a change that results in an increased flow to the servient estate during a flood, for instance. Or a downstream owner might block drainage such that water backs up onto the dominant estate. In either case, there may be liability for damages.

For more about drainage easements, please see our blog post on the subject.