Abandonment as it Relates to Adverse Possession of Water Rights
| Publication year | 2016 |
| Pages | 39 |
Articles
Natural Resource and Environmental Law—Water Law
Abandonment as It Relates to Adverse Possession of Water Rights
By Matthew A. Montgomery, Nathan A. Keever.
Natural Resource and Environmental Law articles are sponsored by the CBA Environmental Law, Water Law, and Natural Resources and Energy Law Sections. The Sections publish articles of interest on local and international topics.
Coordinating Editors
Kevin Kinnear (Water), Boulder, Porzak Browning & Bushong LLP—(303) 443-6800, kkinnear@pbblaw.com; Melanie Granberg (Environmental), Denver, Gablehouse Granberg, LLC—(303) 572-0050, mgranberg@gcgllc.com; Joel Benson (Natural Resources and Energy), Denver, Davis Graham & Stubbs LLP—(303) 892-7470, joel.benson@dgslaw.com
About the Authors
Matthew A. Montgomery is an attorney at Hill & Robbins, P.C. in Denver-(303) 296-8100, matthewmontgomery@hillandrobbins.com. Nathan A. Keever is a partner at Dufford, Waldeck, Milburn & Krohn, LLP in Grand Junction—(970) 241-5500, keever@dwmk.com. Both Montgomery and Keever specialize in the practice of natural resource law. The authors wish to thank Rob Pierce, Dennis Montgomery, Barbara Butler, and Pete Ampe for their comments on this article.
In Archuleta v. Gomez, the Colorado Supreme Court held, among other things, that the water court must consider the issue of abandonment in resolving adverse possession of water rights claims. However, in a typical adverse possession case, neither party asserts that the water right at issue has been abandoned; instead, the parties dispute only who owns the right. How is the water court supposed to address an issue that is not in dispute? This article examines adverse possession and how the issue of abandonment arises in such a case.
In the recent opinion of Archuleta v. Gomez,[1] the Colorado Supreme Court substantially revised the test for adverse possession of a water right, requiring the adverse claimant to perform a complex requantification analysis in order to prevail on the claim. The Supreme Court also held that the water court must consider the issue of abandonment in resolving a claim for adverse possession.[2] At first blush, this seems logical. The claim "I have been adversely using your water" necessarily implies "you have not been using your water." Given that the statutory period for adverse possession is 18 years,[3] whereas the presumption of abandonment can arise in as little as 10 years,[4] it seems inevitable that the issue of abandonment would eventually come up.
But imagine the task posed to a water judge in a private ditch dispute. The plaintiff maintains that she has adversely possessed the defendant's water right by using the defendant's water on her field for the statutory time period; the defendant staunchly denies this. Neither party, however, asserts that the water right has been abandoned. How should the judge address—much less, make findings on—an issue that is not in dispute, and on which neither party will present any affirmative evidence? Although adverse possession is a water matter, it is not an application proceeding under the Water Right Determination and Administration Act of 1969 (1969 Act).[5] Instead, adverse possession is a common law claim tried under the civil rules of procedure.[6]The judge cannot engage in independent fact-finding, rely on the participation of third-party opposers, or enter judgment based on claims that were not raised.[7] Rather, the abandonment analysis required by Archuleta must be different from the abandonment analysis required to resolve a private abandonment claim.
This article examines how the issue of abandonment is addressed in an adverse possession case. The conclusion is that adverse possession litigation entails a type of abandonment that is distinct from the common law claim of private abandonment. The type of abandonment is the de facto abandonment that occurs when a water right is requantified.[8] It is this type of abandonment that the water court must address in an adverse possession case.
Common Law Abandonment
Abandonment of a water right is a long-recognized claim under Colorado law.[9] Although today the definition of abandonment is codified by statute 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,"[10] the claim still follows the common law test for abandonment.
"The critical element of abandonment is intent."[11] The intent to abandon a water right need not be proved directly; instead, it may be inferred through the circumstances of a case.[12] "Continued and unexplained nonuse of a water right for an unreasonable period of time creates a rebuttable presumption of intent to abandon."[13] "Once there is a presumption of intent to abandon, the burden of going forward shifts to the water right owner to introduce evidence rebutting the presumption" of abandonment.[14] But "[acceptable justifications for an unreasonably long period of non-use are limited, . . . and a successful rebuttal requires objective and credible evidence, not merely subjective statements of intent by the water rights owner."[15]
Proving common law abandonment is relatively straightforward. Nonuse can be established through diversion records or lay witness testimony, and there is no need to call an expert witness. In fact, the Colorado Supreme Court has substantially limited the applicability of expert witness testimony to abandonment claims. In People ex rel. Danielson v. City of Thornton, the Colorado Supreme Court held that "inquiry into the amount of water that could be used beneficially for the decreed purposes and the times that such water could be diverted for such beneficial uses" were beyond the scope of an abandonment claim, and that the "process of defining the limitations of a water right is not fairly comprehended within the term 'abandonment.'"[16]
As a private right of action, abandonment, as it applies to ditches, arises almost exclusively in the context of an inter-ditch dispute.[17] The purpose of such a claim is to enhance the junior user's water right by obviating diversions associated with a senior right.[18] At the end of a successful claim, the senior user's water right is terminated, but the junior user does not obtain any new ownership of rights.[19] As the Colorado Supreme Court explained:
When an abandonment occurs, the abandoned water augments the stream from which the diversion is made and reestablishes conditions as they would have existed had the abandoned right never come into existence and had it never been exercised. After abandonment becomes an accomplished fact, the attempt to exercise the abandoned right differs in no respect from an attempt by one who never had a right to assert and exercise one nunc pro tunc relating it back to a time such as to deprive those who have made subsequent valid appropriations of water which they otherwise would receive.[20]
The idea that a subsequent appropriator has a vested right, as against his senior, to insist on the continuance of the conditions that existed at the time that he made his appropriation is the basis of the "no injury" rule.[21] Although this idea is most frequently encountered in change cases, a private abandonment claim is another manifestation of this same rule. Thus, one way to think about a private abandonment claim is that it is essentially a unique type of opposition proceeding (before the water court, but not under the 1969 Act) that allows a junior user to assert injury to his water right based on a senior user's attempt to revive a water right that has reverted to the stream.[22] The...
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