38-30-102. Water rights conveyed as real estate - well permit transfers - legislative declaration - definitions.
Statute text
(1) The general assembly:
(a) Finds that the division of water resources in the department of natural resources needs timely and accurate data regarding well ownership in order to efficiently and accurately account for wells and to ensure that wells are properly constructed and maintained;
(b) Determines that current data concerning well ownership is inadequate and that a substantial number of residential real estate transactions that transfer ownership of a well are not reported to the division;
(c) Determines that current and accurate data is necessary for the state to notify well owners of any health, safety, water right, or stewardship issues pertaining to their groundwater well; and
(d) Declares that this section is intended to provide the division with the information it needs to properly carry out its statutory duties.
(2) In the conveyance of water rights in all cases, except where the ownership of stock in ditch companies or other companies constitutes the ownership of a water right, the same formalities shall be observed and complied with as in the conveyance of real estate.
(3) (a) As used in this subsection (3):
(I) "Closing service" means closing and settlement services, as defined in section 10-11-102, C.R.S.
(II) "Division" means the division of water resources in the department of natural resources.
(III) "Person" means any individual, corporation, government or governmental subdivision or agency, business trust, estate, trust, limited liability company, partnership, association, or other legal entity.
(b) (I) On and after January 1, 2009, when a buyer of residential real estate enters into a transaction that results in the transfer of ownership of a small capacity well listed in section 37-90-105 (1)(a) or (1)(b) or a domestic exempt water well used for ordinary household purposes that is listed in section 37-92-602 (1)(b) or (1)(e), the buyer shall complete a change in owner name form for the well in compliance with section 37-90-143; except that, if an existing well has not yet been registered with the division, the buyer shall complete a registration of existing well form for the well within sixty-three days after closing the transaction.
(II) The residential real estate contract approved by the real estate commission created in section 12-10-206 shall require the buyer to complete the appropriate form for the well and, if no person will be providing a closing service in connection with the transaction, to file the form with the division within sixty days after closing.
(c) (I) If a person provides a closing service in connection with a residential real estate transaction subject to this subsection (3), that person shall:
(A) Within sixty days after closing, submit the change in owner name form to the division with as much information as is available, even if the well has not yet been registered with the division; and
(B) Not be liable for delaying the closing of the transaction in order to ensure that the buyer completes the form required by subsection (3)(b)(I) of this section. If the closing is delayed pursuant to this subsection (3)(c)(I)(B), neither the buyer nor the seller shall have any claim under this section for relief against the buyer, the seller, the person who provided closing services, a title insurance company regulated pursuant to article 11 of title 10, or any person licensed pursuant to article 10 of title 12.
(II) If no person provides such closing service, the buyer shall submit the appropriate form within the deadline specified in sub-subparagraph (A) of subparagraph (I) of this paragraph (c) and pay the applicable fee.
(III) If the change in owner name form described in subsection (3)(c)(I)(A) of this section does not include a valid well permit number, the division shall instruct the buyer to complete a new change in owner name form or registration of existing well form, as applicable, and the buyer shall submit the applicable form to the division.
History
Source: L. 1893: p. 298, 1. R.S. 08: 669. C.L. 4870. CSA: C. 40, 2. CRS 53: 118-1-2. C.R.S. 1963: 118-1-2. L. 2008: Entire section amended, p. 192, 1, effective January 1, 2009. L. 2019: (3)(b)(II) and (3)(c)(I)(B) amended, (HB 19-1172), ch. 136, p. 1722, 231, effective October 1. L. 2023: (3)(b)(I) and (3)(c)(I)(A) amended and (3)(c)(III) added, (HB 23-1125), ch. 47, p. 174, 2, effective August 7.
Annotations
ANNOTATION
Annotations
Law reviews. For note, "Water Title Examinations", see 34 Rocky Mt. L. Rev. 509 (1962). For article, "Transaction Costs As Determinants of Water Transfers", see 61 U. Colo. L. Rev. 393 (1990).
Deed determines extent of water rights. Where a deed clearly describes a water right intended to be conveyed there is no room for the application of the doctrine of implied grant, because the matter is one of conveyance and not of implication, and the extent of plaintiff's water rights is to be determined by the express terms of his deed. Wanamaker Ditch Co. v. Crane, 132 Colo. 366, 288 P.2d 339 (1955).
If deed is silent, intention of parties determinative. It is recognized in this state that water may or may not be appurtenant to land, and the provisions of the deed control. If the deed is silent on the subject, then the intention of the parties is to be determined from all the circumstances of the case, including the fact as to the use of the water and whether it is necessary and essential to the beneficial use and enjoyment of the land. Kinoshita v. North Denver Bank, 31 Colo. App. 227, 501 P.2d 1337 (1972), aff'd, 181 Colo. 183, 508 P.2d 1264 (1973).
Presumption of intent of convey all water rights. Where a deed to land conveyed all water rights in any way appertaining or belonging to said land, and the grantee and his successors in title claimed a water right thereunder, in the absence of some fact or circumstance disclosing a patent inconsistency with the right claimed, a presumption arises that the grantor intended to and did convey any and all water rights incident to and necessary to the beneficial enjoyment of the land. Means v. Pratt, 138 Colo. 214, 331 P.2d 805 (1958).
Prima facie title to water rights established. Where a claim to water rights has been consistently asserted for nearly 50 years without challenge or interference and the water so claimed has been used upon the lands of a petitioner and his predecessors in title for that period of time, a prima facie title to such right has been established. Means v. Pratt, 138 Colo. 214, 331 P.2d 805 (1958).
As to whether water right used to irrigate land passes as appurtenance to land, See Kinoshita v. North Denver Bank, 31 Colo. App. 277, 501 P.2d 1337 (1972).
Water rights may be conveyed and warranted. Water rights can be conveyed and the quality of the title may be warranted much like with real property. Navajo Dev. Co. v. Sanderson, 655 P.2d 1374 (Colo. 1982).
Without regard to property over which water flows. Whatever the exact nature of the property interest, water rights may be bought and sold without regard to the real property over which the water flows. Navajo Dev. Co. v. Sanderson, 655 P.2d 1374 (Colo. 1982).
Applied in Davis v. Hurt, 81 Colo. 10, 253 P. 394 (1927); Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897 (1953); Sherwood Irrigation Co. v. Vandewark, 138 Colo. 261, 331 P.2d 810 (1958).