IRRIGATION AND DRAINAGE — WATER RIGHTS AND RECLAMATION
MAINTENANCE AND REPAIR OF DITCHES
42-1204. Prevention of damage to others. The owners, constructors, or operators of ditches, canals, works or other aqueducts, and their successors in interest, using and employing the same to convey the waters of any stream or spring, whether the said ditches, canals, works or aqueducts be upon the lands owned or claimed by them, or upon other lands, must carefully keep and maintain the same, and the embankments, flumes or other conduits, by which such waters are or may be conducted, in good repair and condition, so as not to damage or in any way injure the property or premises of others. The duties referenced in this section, whether statutory or common law, require reasonable care only and shall not be construed to impose strict liability or to otherwise enlarge the liability of the owner, owners, or operators of any irrigating ditch, canal, works or other aqueduct. The owners, constructors, or operators of such ditches, canals, works or other aqueducts, while responsible for their own acts or omissions, shall not be liable for damage or injury caused by: (1) The diversion or discharge of water into a ditch, canal, works or other aqueduct by a third party without the permission of the owner, owners, or operators of the ditch, canal, works or other aqueduct; (2) Any other act or omission of a third party, other than an employee or agent of the owner, owners, or operators of the ditch, canal, works or other aqueduct; or (3) An act of God, including fire, earthquake, storm or similar natural phenomenon. The provisions of this section shall not be construed to impair any defense that an owner, constructor, or operator of a ditch, canal, works or other aqueduct may assert in a civil action. The owners, constructors, or operators have the right to enter the land across which the right-of-way extends, for the purposes of necessary cleaning, maintaining and repairing the ditch, canal, conduit, and embankments, and to occupy such width of the land along the banks of the ditch, canal, conduit, and embankments, as is necessary to properly do the work of cleaning, maintaining and repairing the ditch, canal, conduit, and embankments, with personnel and with such equipment as is commonly used or is reasonably adapted to that work. The right-of-way also includes the right to remove from and to deposit on the banks of the ditch or canal the debris, vegetation, and other matter necessarily required to be taken from the ditch, canal, or from the right-of-way to properly clean and maintain them, but no greater width of land along the banks of the canal or ditch than is absolutely necessary for such deposits shall be occupied by the removed debris, vegetation, or other matter. The right-of-way also includes the right to remove or control vegetation within the ditch or canal or along the embankments of the ditch or canal as necessary to properly access, clean, and maintain them, but the owner or operator of the ditch, canal, or conduit is not obligated to maintain or control the right-of-way or vegetation for the benefit of the owners or claimants of lands of others. This section shall apply to ditches, canals, conduits, and embankments existing on the effective date of this act, as well as to ditches, canals, conduits, and embankments constructed or existing after such effective date.
[(42-1204) 1881, p. 271; R.S., sec. 3186; reen. R.C. & C.L., sec. 3309; C.S., sec. 5657; I.C.A., sec. 41-1104; am. 1996, ch. 187, sec. 2, p. 595; am. 2012, ch. 274, sec. 2, p. 773; am. 2019, ch. 158, sec. 3, p. 512; am. 2019, ch. 183, sec. 2, p. 591; am. 2021, ch. 250, sec. 3, p. 779.]