Trespassing on Neighbor's Land for Pond & National Forest Access Question

[Matt M.]

My family has owned a cabin on 40 acres in Boulder County, Colorado of 60+ years. We have always fished the neighbors pond and walked through their land on the way into the national forest. Our stream feeds the pond, and we own right up to where they meet. The neighbor's land was just sold to a new owner who has already told some cabin guests of ours to stop fishing the pond. 

With that being said, since we have had access all along, is there some legal ground we can stand on to keep it? Some kind of easement, etc?

[Jerry W.]

The term for gaining an easement by repeated use is a prescriptive easement.  It is similar to adverse possession.  As to water rights they actually would probably not apply.  Use of water or recorded rights are what give you rights to use it (prior appropriation).  There are rights in some states based upon owning land alongside of the stream or river (riparian).  Once the water goes into the pond you lose any rights to it.  If the pond is legal the owners have rights in the pond.  If you had the right to use the stream water on your property you could do so and that might result in the pond only getting limited water and the owners might then be willing to strike a deal with you.  I would say your chances of that are small.

    Off hand it sounds like you have a problem as the use to fish in the pond was probably permissive.  I would definitely check with a local attorney as I have not researched Colorado law in that area for about 26 years.