Adverse Possession of River Flows
| Jurisdiction | Colorado,United States |
| Citation | Vol. 23 No. 6 Pg. 1313 |
| Pages | 1313 |
| Publication year | 1994 |
1994, June, Pg. 1313. Adverse Possession of River Flows
Colorado recognizes that an adverse user may acquire a prescriptive title to water once it has been diverted from the river.(fn1) This article examines whether Colorado recognizes a prescriptive claim to flowing waters which have not been diverted by those who have a decreed right to do so; that is, whether an individual can acquire a prescriptive right to water which should have been left in the river to satisfy senior decreed water rights by diverting such water from the stream openly, notoriously and continuously and under claim of right, for the period prescribed by the statute of limitations to recover real property.(fn2)
In the majority of western states, such a prescriptive right can be acquired, at least under some circumstances.(fn3) It would have been surprising if Colorado, with its ancient and comprehensive system for the adjudication of rights to the use of water, would enthusiastically embrace the adoption of this supplementary method of acquiring water rights. As it turned out, Colorado ultimately rejected the theory. However, it did so slowly, and with some hesitation, in a line of decisions commencing at the turn of the century. The hesitancy was no doubt due to recognition of the existence of the majority rule to the contrary.
In 1900, a senior ditch on the South Platte, located just below its confluence with the Big Thompson River, brought an action to compel Big Thompson ditches with junior priorities to pass water to it when it was in priority. The defendant ditch companies asserted adverse possession for seven years under decrees of court and color of title. The decrees on which they relied were obtained by them against the water commissioner of the Big Thompson River, requiring him to satisfy all rights on that river before passing water downstream. (The senior downstream ditch was not a party to the actions, but may have had notice of them, and it did not complain when diversions by junior priorities on the Big Thompson reduced the water available to it.)
In holding for the senior ditch company, the Colorado Supreme Court made two points. It first observed:
The supply of water in the streams of this state is variable. In times of low water in a stream, or its tributaries, which is the common source of supply for many ditches, some will be unable to obtain their full share. If the failure of one diverting water from the stream to protest every time a shortage in his supply is occasioned by another withdrawing water to which he is not entitled, is to be construed as laches or acquiescence, amounting to an abandonment, priorities as determined under the statutes would be of little value.(fn4)
The second point made by the court was that "color of title" required by the statute must be "a paper title, which purports to convey to them the priorities" of the senior ditches, which the decree did not do.(fn5)
However, in the 1905 case of Clark v. Ashley, the Colorado Supreme Court agreed with the defendants' contention that "[t]he right to use water for irrigation may be acquired, not only by original appropriation or by grant, but also against individuals in whom the right is vested, by adverse possession and use."(fn6) This appeared to be a significant step toward adoption of the majority rule...
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