Best if printed in landscape.

Can an unused water right be lost?

Abandonment

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.

People 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 water rights.
• Castlewood sold the land but retained ownership of the well, water rights and access easements.
• 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 speculation.
• 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?

Forfeiture

Can an unused water right be lost? Is there an alternative to the legal principle of abandonment for loss of an unused water right?

Rencken 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 season.
• 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 substantial evidence.

• 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 forfeiture?
• 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.

When 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.

There 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?

Montana Statute on abandonment

Utah 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 last forever?

Prescription

Can 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.

Hammond 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:  denied
• 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

• N.D.C.C. §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 is exclusive."

• 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 is attached?
• 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?

Last updated February 12, 2007

E-Mail agecinf@ndsuext.nodak.edu
Published by Agribusiness and Applied Economics
Morrill Room 217, P.O. Box 5636
North Dakota State University, Fargo, ND 58105-5636
Phone: (701) 231-7441
Fax: (701) 231-7400