Chapter 21 - § 21.5 • ADVERSE POSSESSION OF WATER RIGHTS

• Jurisdiction: Colorado

§ 21.5 • ADVERSE POSSESSION OF WATER RIGHTS

Ownership of water rights may be deemed ownership of real property for purposes of adverse possession claims.¹⁷⁰

One may not adversely possess water from a stream or a tributary aquifer because a water right does not represent actual ownership of any part of the public's water in the stream, but only the right to claim and divert at the headgate of the diversion works the amount of water actually needed for beneficial use, up to the volume of the adjudicated priority.¹⁷¹ But private water users within an irrigation ditch may adversely possess against each other behind the headgate, that is, after the water has been diverted from the stream or aquifer pursuant to an adjudicated water right.¹⁷² One claiming adverse possession of a water right must show an actual, adverse, and hostile possession under claim of right, which is open, notorious, exclusive, and continuous for the prescribed statutory period,¹⁷³ and that he or she made an actual beneficial consumptive use of the water for the such period.¹⁷⁴ A claim by a junior appropriator under his or her later priority is not hostile as against a senior appropriator.¹⁷⁵

Formal and informal arrangements between water right owners in an irrigation ditch are more often dictated by day-to-day circumstances than by legal rights of ownership. Typically, rotation agreements involving irrigation rights indicate cooperation and permission among water users. By rotating the entire flow of the adjudicated priority for the ditch onto certain fields at various times in round robin fashion, the irrigators optimize the use of the ditch's gravity flow to the irrigated fields served by the ditch. Such arrangements do not typically compromise the title interests of the individual irrigators, and do not demonstrate adverse possession except in unusual circumstances. The adoption of mutually agreeable rotation systems by the owners of water rights cannot be deemed conclusive proof of either the creation or the abandonment of particular ownership rights.¹⁷⁶

--------

Notes:

^[170] Water Rights of V-Heart Ranch, Inc. v. V-Heart Ranch, Inc., 690 P.2d 1271 (Colo. 1984).

^[171] Mountain Meadow Ditch & Irrigation Co. v. Park Ditch & Reservoir Co., 277 P.2d 527 (Colo. 1954); Archuleta v. Gomez, 200 P.3d 333 (Colo. 2009).

^[172] Mountain Meadow Ditch & Irrigation Co. v. Park Ditch & Reservoir Co., 277 P.2d 527 (Colo. 1954).

^[173] Id.; Archuleta v. Gomez, 200 P.3d 333 (Colo. 2009); Archuleta v. Gomez,...