Water

[Mark K]

Sounds like if you want to continue doing business you should do what's customary for the area or look for other work.

 

[Elliott]

Real Property has all kinds of rights that you can
fight over. Development rights come to mind.
We now live in a market where the number of houses
or units on a piece of land can be transferred, much
in the same way as water rights. Once you start
going down the personal property road you can parse
virtually every "right".


elliott

 

[Nancy Wyatt]

Ed-

I am not confused. A water right is different than riparian or littoral rights. A water right is :

a property right that is either conditional or absolute and conveys the right to use a particular amount of water, with a specified priority date as confirmed by the water court or ground water commission if within the designated ground water basins.

 

[Ray Miller]

It will be very hard to educate them. As to shares and rights. Shares in a ditch can be moved up or down the valley if you have other land you want to use the water on.

Say I have enough water for all my hay meadows from my deeded rights out of Wilber or Wilson creek.

Now I have shares out of the Independent Blue. I lease land from the Grand Co. Ranch above me. I can now use my shares of water to water those medows. Or If I lease some of the hay medows on the Bush Ranch to the south of me, below I can also pull those shares of water out of the Blue and use there. I can also let others use my shares if I like. I can sell, loan, lease them for 1 to 100 years or borrow against them.

But my water rights out of Wilber or Wilson creek can only be use on my land down hill or if I want to up hill on my land. But once that water flows off my fields into the Smith ditch, it them becomes smith ditch water and I have no rights to it. Nor can I give it to my neighbors down ditch from me.

Up until a few years back no one thought about leasing water rights. It took years for them to get use to that.

 

[Nancy Wyatt]

**** Water rights in Colorado are considered a private property right. Water rights can be sold or inherited, and prices may vary according to supply and demand.
Alos-

the ditch company has the right to enter your property to maintain the ditch and it banks. so, if a dich runs through your property and you don't use it the ditch company and water users are responsible for it. So, your neighbor could go on your property legally to maintain the ditch if they are a user.

Ditches can be owned by fee or easement. If the ditch runs through an easement, then the ditch owners does not own the ditch but owns the right.

You can NOT use the water in the ditch that runs through your land unless you have a WATER RIGHT.

 

[Ross (CO)]

Edd, ......Just as we cross a fine line when we (appraisers) encounter an environmental issue (mold ?) with a property.......so do we have the same potential for crossing that line in this very sensitive, yet equally powerful, issue involving aspects of water resources ! I recall there are 6 water districts in the state, each centered within that certain primary river drainage network. You are in Distrist 2 and I think Pueblo is location of that district's water "court". (I know you know this stuff)

Why not see if you can draw the client's focus toward securing added support for their business decision by contacting another party who may have more regular and extensive experience with water allocation and rights matters. There are some very well-defined elements of hierarchy in the ladder of who has primary water rights and who had subsequent (inferior) rights as these rights were progressively "created" over the last ~140 years. A few years ago I took two CE classes offered through CU's extension services. As you may know, that source of appraiser classes has since folded. These classes I took then were about Water Law....bingo. Just up your area of direct interest. ( As a former geologist and lover of anything to do with earth sciences I have just taken those two class notebooks off my shelf and enjoying this enticement to page through them again !)

The teacher of those classes was a lawyer in Colorado Springs, and I'd be bettin' that he is still available for you to bounce a few questions, and perhaps to also steer your client if need be. His name is Jim Felt, with a law firm that is the typical string of names, and his office phone is 719-471-1212 on N. Weber Street.

 

[Ray Miller]

As I understood it. That some of the Ditch Companies bought water rights. Combined those and gave shares to the investors which at the time were ranchers. Which allowed so much water per share.

You can NOT use the water in the ditch that runs through your land unless you have a WATER RIGHT.

Water right that feeds the ditchl or own water shares that in the ditch. Two different critters.

But you still need a share owner ship of that ditch to use the water right. ie; my water rights out of Wilber Creek could not be taken out of the Blue once they had flowed in to the Blue. The Blue had no water out of Wilber Creek ajudacated to it. But my Wilber creek water could not be taken back out and used below the Blue ditch. Even though I owned the rights to that water at head of Wilber Creek.

I could and did plow a ditch line above the Blue and pool my water then laid hoses from the pools over the top of the blue and water on the down hill side of the blue. This darn sure ended me up in Water Court, but it was my water as the court said until it flowed into the Blue. I could do with it what ever I wanted to.

 

[Nancy Wyatt]

Ray-

It may be different from state to state. I am 100% sure that what I wrote is correct for CO.

You can not use the water that feeds the ditch unless you have a water right-ie. shares.

I'll check this out some more later. Have to go appraise a home that is a historical landmark in a nearby city. What fun.

 

[Farm Gal]

Ed:

In my opinion this isn't exactly a matter of personality, it is a highest and best use issue, which HAS to be resolved at the start of the appraisal process. Communication!

Having appraised some wierd rights in my day I would have to add that this is a more than just a sematics issue! You are right, and so are the property owners who say thier property is 'worth' more....

The land is at least in theory, subejct to different 'highest and best use' IF tied to the H20 rights ...be they shares or be they 'rights'... AS LONG AS THEY CONVEY WITH THE PROPERTY, and the land is not altered to 'dry'...

This works fine and good as long as the precedence actually produces useable water to the land <_< ... something that may be more in question as the legalities and the realities of whether ANYTHING flows down a given ditch in a dry year. Ray has the water thing dead on! Precedence was the cause of shooting fury in yesteryear and may hit that level again in years to come .

Most 'rights' are subject to contractual agreement and or recordation someplace sometime. :idea: The lender CAN encumber the water shares through deed restriction, can they not?

Nancy has it aright!
Follow me closely here: the property with the water SHARES (no mater how titled) if and ONLY if properly encumbered by a lender would typically have more 'value' than the dry property with no water 'rights' be they shares or rights.

All the lender has to do and YOUR job as a appraiser must then be to convey to the lender that the 'shares' must be seperately encumbered, by legal means to stay with the land for the life of the loan and any recommitals for the loan.

The fact is this is more than a 'personal property issue'. It is a functionality issue directly affecting the highest and best use of the land, therefore value. Client communication, H&BU analysis and then and only then: VALUE opinion...

Now getting into the specific value of the right/share which has direct coorelation with the strength of the right in dry years is a whole 'nother ball of barb-wire. Ray knows what I mean when I say you gotta be REAL careful if you are gonna snip at a ball of wire.

Pasting water rights or a length of barbwire in a report or wall display packet is more tricky than it looks. You can get into a world of hurt with water or wire if you don't understand how to cut either one.

 

[Ray Miller]

Well said Lee Ann,

More tails then a ball of snakes in the spring time or some roll of barb-wire some dude rolled up.