Abandonment of Water Rights: Is Use it or Lose it the Law?

• Publication year: 1989
• Pages: 2125

18 Colo.Law. 2125 Colorado Lawyer 1989.

1989, November, Pg. 2125. Abandonment of Water Rights: Is Use It or Lose It the Law?

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Vol. 18, No. 11, Pg. 2125

Abandonment of Water Rights: Is "Use It or Lose It" the Law

by Stephen H. Leonhardt

Unlike many issues in Colorado water law, abandonment of a water right adheres closely to its common law roots. The Colorado Supreme Court held in 1883 that (1) abandonment requires both nonuse and intention to abandon, (2) nonuse evidences intent to abandon and (3) nonuse for an unreasonable time raises a rebuttable presumption of such intent.(fn1) Despite some statutory and judicial refinement, the basic concepts remain unchanged. The statute defining abandonment adopts the common law principles:

"Abandonment of a water right" means 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.(fn2)

As unappropriated water becomes increasingly scarce and valuable, Colorado's law of abandonment takes on greater importance. Given the legislature's declared policy "to maximize the beneficial use of all of the waters of this state"(fn3) and the need for certainty which underlies the appropriation doctrine,(fn4) the fate of unused water rights should be determined consistently and

predictably. "Intent" is an elusive concept particularly when its determination is left to a trial court's unfettered discretion. Principled and consistent adjudication of abandonment demands a more comprehensive definition of what does, or does not, show "intent... to discontinue permanently the use..." of a water right

This article discusses how the Colorado Supreme Court has developed such a definition and suggests further steps which may be appropriate.

1989 Colorado Decisions

The Colorado Supreme Court has decided two major water abandonment cases in 1989. The first, Southeastern Colorado Water Conservancy District v. Twin Lakes Associates,(fn5) unanimously upheld the trial court's finding that several large hydraulic gold mining water rights had been abandoned for nearly seventy-five years. People v. Thornton(fn6) upheld a trial court's decision that two groundwater rights had not been abandoned, despite uncontested evidence of nonuse for more than ten years, and despite the fact that for at least eight years the owner intended only to sell the water rights, not to use them. Three dissenters in Thornton, including the author of Twin Lakes Associates, argued that the wells were abandoned as a matter of law.

At first glance, the Twin Lakes Associates and Thornton decisions appear inconsistent, except as both recognize that because abandonment is a factual issue, the fact finder's decision will not be reversed "unless the evidence is wholly insufficient to sustain it."(fn7) While the decisions do show considerable deference to the water court's findings, close examination reveals that they also provide some important guidelines for the water court's crucial determination of intent. The cases also suggest that obstacles to proving abandonment, while substantial, are not as insurmountable as many water lawyers might suspect.

The Twin Lakes Associates decision summarizes several established ground rules. It states, "Abandonment requires a concurrence of nonuse and intent to abandon." Because intent is so difficult to prove directly, the court says, abandonment may be inferred from circumstantial evidence. A rebuttable presumption of abandonment arises from "continued and unexplained nonuse for an unreasonable time," shifting the burden to the water rights' owner to rebut the presumption.(fn8) The presumption may be rebutted by showing

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"justifiable excuse for the nonuse, ... but acceptable justifications for an unreasonable period of nonuse are extremely limited." The court goes on to say that the presumption cannot be rebutted by the owner's "mere subjective declarations" of intent, nor by attributing the nonuse to "present economic difficulties." When abandoned, the water reverts to the stream for junior appropriators, and the owner cannot claim a priority relating back to the original appropriation.(fn9)

Within the framework of these principles, Twin Lakes Associates and Thornton clarify procedures for proving and determining abandonment.

Rules for Determining Abandonment

Standard of Proof

Until relatively recently, it was commonly acknowledged that abandonment of a water right "must be proved by 'clear and convincing' evidence."(fn10) This is no longer true. CRS § 13-25-127(1), enacted in 1972, provides that "the burden of proof in any civil action shall be by a preponderance of the evidence." The Thornton decision expressly recognizes that this statute applies to abandonment cases.(fn11) Thus, it is no longer necessary to show abandonment by "clear and convincing" evidence.

Proof of Nonuse

As with proof of any negative, proof of nonuse of a water right raises difficult issues of evidence and inference. In many abandonment cases, such as Thornton, nonuse is not seriously in dispute because ample records or the owner's admissions demonstrate that available water has not been used for several years. However, ironclad evidence of nonuse...