Best if printed in landscape.
an unused water right be lost?
East Twin Lakes Ditches and Water Works, Inc. v. Board of County Commissioners, Colorado, 2003 (p. 177 of Gould's 7th ed.)
- East Twin Lakes Ditches argued that Lake County board of county commissioners had abandoned the water right in Derry Ditch as a result of approximately 30 years of non-use and decision not to improve (line) the ditch.
- Water court ruled "no abandonment" and East Twin Lakes Ditches appealled.
- 30 years of not applying water to a beneficial use gave rise to a presumption of abandonment; this assumption needs to be rebutted to prevent the right from being declared abandoned.
- The holder of the water right (the county in this case) argues that the previous owners and operators engaged in activities inconsistent with an "intent to abandon;" tried using the ditch, made some improvements and repairs, but decided to not line the ditch.
- "Abandonment of a water right" is defined as "the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or part of the water available thereunder."
- Abandonment requires two elements: sustained period of non-use and an intent to abandon.
- Intent is a subjective element and difficult to prove, so state law provides that failure to apply water to a beneficial use for a period of ten years creates a rebuttable presumption of abandonment.
- The burden of proof then shifts to the owner of the water right to rebut the presumption with evidence that justifies non-use and an intent not to abandon. Evidence to rebut the presumption include 1) repairs and maintenance, 2) attempts to use the water, 3) records of diverting water; no documentation suggesting abandonment, 4) diligent efforts to sell the right, 5) filling documents to preserve the right, 6) leasing the right, and 7) economic and legal obstacles to exercise the right.
- Appellate court reviewed evidence: maintenance and repairs, actions to protect the right, leasing the right, efforts to sell the land and water right, and presence legal and economic obstacles to using the water right. Testimony by landowner are valid evidence but inadequate to rebut the presumption.
- DISSEN T -- affirmative decision to not line the ditch is intent to abandon; the economic obstacles were "run of the mill," not extraordinary like general economic depression or war; efforts to sell land and water were due to speculation in the land market, not an effort to have the water put to a beneficial use.
v. City of Thornton, Colorado, 1989
(not included in Gould's 7th ed.)
- Water court did
not consider two water rights as having been abandoned even though there
had been no beneficial use of available water for ten years or more.
Water court found that permit holders had rebutted the presumption of
abandonment by demonstrating lack of intent to abandon.
- On appeal, supreme
court of Colorado upheld the water court's decision to preserve the
- Castlewood sold
the land but retained ownership of the well, water rights and access
- Castlewood never
used the water, realized that it could not use it as originally planned,
and were hoping to sell the water rights.
- Parker agreed to
buy well no. 1 if changing the point of diversion would be approved;
this never happened. Sale of well no. 2 also failed. After other attempts,
wells were sold and then conveyed several times.
- Abandonment is
the termination of a water right as a result of intending to permanently
discontinue use of available water.
- Intent is essence
of abandonment; but the intent can be inferred from all the circumstances.
- Continued and unexplained
nonuse for an unreasonable period of time raises a rebuttable presumption
of intent to abandon. The presumption is imposed because of the difficulty
of obtaining direct evidence of the owner's intent; the long period
of nonuse suggests an intent to abandon.
- To rebut the presumption,
there must be more than statements of desires and hopes; there must
be fact or conditions excusing the nonuse. Efforts to sell helps rebut
the presumption in this case. The efforts to sell were more than just
- Reasonable justification
or excuse for nonuse is not necessary to rebut the presumption of abandonment;
but such explanations are relevant to determining the owner's intent.
- Unused water that
is considered abandoned is available to be appropriated by the state.
- Intent is a component
of abandonment. Why would anyone ever want to abandon a water right?
- What is evidence
of intent to abandon? An explicit statement? Water was never put to
a beneficial use?
- Under what
conditions is intent presumed? Acquiring substitute water? Never
using or attempting to use excess water?
- What is needed
to rebut a presumption of intent to abandon the unused water right? What
statements would rebut the presumption? What actions? What reasons
would justify or explain non-use?
an unused water right be lost? Is there an alternative to the legal principle
of abandonment for loss of an unused water right?
v. Young, Oregon, 1985
(p. 184 of Gould's 7th ed.)
- Water Resources
canceled Rencken's water right. The district court upheld the decision.
Supreme Court remanded to Water Resources.
- Rencken had been
found to have not used water for five successive years. Rencken had
irrigated in late October or early November. The irrigation season ends
on October 31, thus an argument was made that if the irrigation did
not start until November, there was no irrigation during the 1983 irrigation
- Does state law
provide for abandonment or forfeiture? Abandonment requires an intent
by the owner to abandon (and nonuse raises a presumption of intent to
abandon); forfeiture follows failure to use the water for a period of
time regardless of the owner's intent. This court interpreted the statute
to be a forfeiture.
- Does "five successive
years" mean irrigation seasons or calendar years? Court did not answer
this question; instead it found that Rencken's water right is limited
to the irrigation season and that use outside the irrigation season
(November) was not within the water right.
- Who has the burden
of proof? Proponents of cancellation must show the nonuse; however the
burden does not then shift to the permit holder; the burden remains
with the proponent of cancellation to prove by reliable, probative and
- Why would a state
want to use a theory of forfeiture, rather than abandonment?
- What if the non-use
was beyond the appropriator's control? Would that non-use lead to a
- Can a portion of
a water right be forfeited; such as the quantity that is not used for
the statutory period?
- Who can initiate
a forfeiture action -- the agency or a private party?
- Who decides whether
a right has been forfeited -- the agency or a court?
- What is the process
for cancelling a water right?
North Dakota applies the concept of forfeiture, see N.D.C.C.
§§61-04-23, -24 and -25.
an appropriator fails to apply water to a beneficial use or ceases to
use it for a beneficial use for three successive years, the state engineer
may declare the water permit forfeited, unless the failure to use the
water was due to its unavailability, a justifiable inability to complete
the works, or other good and sufficient cause.
shall be a hearing, evidence can be taken, a decision rendered, and an
appeal can be taken.
Is this the same process for cancelling a conditional
water permit in North Dakota?
Statute on abandonment
statute on abandonment and forfeiture
- Does resuming the
use of the water before the forfeiture proceeding is initiated protect
the water right?
- An order cancelling
a water right is to be filed with the county register of deeds.
- Does the principle
of forfeiture of unused (excess) water lead to waste; that is, where
is the incentive to conserve water if not using it for a beneficial
purpose results in forfeiture?
- Can I retain my
water right if I deliver any excess to other parties entitled to use
the water? N.D.C.C. §61-04-17.
- Does a water right
a water right be acquired by using the water? Or conversely, can a water
right be lost through prescription?
Turner v. Bassett, New Mexico, 2003 (p. 192 of Gould's 7th ed.)
- Can an individual acquire a water right through prescription (adverse possession)? Conversely, can a water right be lost to an adverse possessor?
- Land (real property rights) that an individual owner does not use (rights that the owner arguably has "abandoned) can be acquired by another individual through the concepts of adverse possession and prescription (that is, continuous hostile use for the required period of time).
- Water rights, on the other hand, revert to the state when they are abandoned.
- Because an abandoned water right has reverted to the state and the state system of permits is the exclusive means for acquiring a water right from the state, an individual cannot acquire another individual's water right through adverse possession. Likewise, an individual cannot lose a water right to another individual through adverse possession.
v. Johnson, Utah, 1937
(not included in Gould's 7th ed.)
an earlier case with a different outcome
- Can water rights
be acquired through adverse possession?
- If yes, do the
facts establish a title by adverse possession?
- Plaintiff sought
to quiet title to water of Barber Spring on the basis of adverse possession.
Defendants claim the district court had adjudicated the rights in 1898
and 1900 with defendants receiving water 7 of 10 days and plaintiff's
predecessor receiving water 3 of 10 days. Court ruled for defendants.
- Water, once appropriated,
is a property right that can be sold; real estate can be acquired by
adverse possession; but party argues that water rights statute eliminates
adverse possession, water can only be lost through abandonment (not
through adverse possession), and that water rights can be acquired only
through appropriation statute, and not adverse possession.
- Court states that
water appropriation statute applies only to unappropriated waters, but
private waters can be acquired through adverse possession.
- Do the facts support
adverse possession in this case? It looks like it.
- Petition for rehearing:
- Dissent: how can
I adversely possess someone else's right to use water? How do I know
whose water I am taking? Am I not taking water from the state? And if
the other private users are not using their water, is that not an abandonment
that should then revert back to the state for reappropriation according
to the statute?
North Dakota law aligns more closely with New Mexico's 2003 decision, than it does with the 1937 decision in Utah. See
§61-04-22 Prescriptive water right if used for a beneficial
use over a period of twenty years prior to July 1, 1963.
- The purpose of this North Dakota statute is to clarify water rights that arose in the past (especially that that arose from putting water to a beneficial use); it is not intended to define a second method of acquiring water rights at this time.
Also see Montana
Code §85-2-301(3). "A right to appropriate water may
not be acquired by any other method, including by adverse use, adverse
possession, prescription, or estoppel. The method prescribed by this chapter
- Can a right to unappropriated
water be acquired from the state through adverse possession (prescription)? Can any
property rights be acquired from a public entity through adverse possession? The answer is probably no, especially in the states where courts have ruled that the permit system is the exclusive method for acquiring a water right.
- Can one acquire
a water right by adversely possessing the land to which a water right
- By not stopping
an illegal use by another person, is the current owner demonstrating an intent to abandon? It may be; review the East Twin Lakes Ditches case.
- How do states correct
the record for long-standing non-permitted uses?
February 12, 2007