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Terminating a water right

A water right may not last forever. This page reviews laws that define when a water right may terminate.

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As stated previously, beneficial use is the basis, measure and limit of a water right under the prior appropriation doctrine.  If the water is not being put to a beneficial use, the water right will expire.

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Document Use of Water

One way in which a water rights can be lost is to not use the water.  To protect against an argument of non-use, water appropriators can document their use of the water

  • N.D.C.C. §61-04-27  "On or before the thirty-first day of March of each year all persons holding a water permit shall file with the state engineer ... water use, and such other information as the state engineer shall require. The state engineer may also require any such persons to install measuring devices..."
  • N.D.A.C. 89-03-01-13. [Report of water usage] ... must include the permit number, name of water source, amount of water usage, pumping rate, and such other information as the state engineer shall require. One form must be filed for each water permit ...  

Recall that a fundamental principle underpinning Beneficial Use in the Prior Appropriation doctrine is that "the amount of water being put to a beneficial use is the measure or quantity of water that the appropriator is entitled to use in the future."  Not putting water to a beneficial use means the appropriator no longer has a right to the water that is not being used.  Documenting the quantity of water being put to a beneficial use is one step to preserving a water right.

Abandonment

If the water right is not being used, it will revert about to the state and then be defined as "unappropriated" and available for new appropriators.  The following case illustrates how an entity wanting a water right argues that any existing right should be considered terminated due to non-use thus making water available for the new user.

East Twin Lakes Ditches and Water Works, Inc. v. Board of County Commissioners, Colorado, 2003 (p. 186 of Weber's 9th ed.)

  • East Twin Lakes Ditches argued that Lake County board of county commissioners had abandoned its water right in Derry Ditch as a result of approximately 30 years of non-use and a decision not to improve (line) the ditch.
  • The water court ruled "no abandonment" and East Twin Lakes Ditches appealled.
  • Thirty [30] years of not applying water to a beneficial use gave rise to a presumption of abandonment; this presumption needs to be rebutted to prevent the right from being declared abandoned and thus rendering the water available for another user (in this case, East Twin Lakes).
  • 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;" for example, they 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 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 of legal and economic obstacles to using the water right. Testimony by landowner is valid evidence but inadequate to rebut the presumption.The court concludes there is adequate evidence to rebut the presumption of an intent to abandon the water right.
  • DISSEN T -- affirmative decision to not line the ditch is intent to abandon.  The economic obstacles were "run of the mill," not extraordinary, such as 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 Weber's 9th ed. but mentioned on p. 217)

  • 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 the water as originally planned, and was 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.

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  • Montana Statute on abandonment  at MCA 85-2-404.

    • (1) If an appropriator ceases to use all or a part of an appropriation right with the intention of wholly or partially abandoning the right or if the appropriator ceases using the appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right is, to that extent, considered abandoned and must immediately expire. 

    • (2) If an appropriator ceases to use all or part of an appropriation right or ceases using the appropriation right according to its terms and conditions for a period of 10 successive years and there was water available for use, there is a prima facie presumption that the appropriator has abandoned the right for the part not used.  

  • 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? Is acquiring substitute water evidence of intent to abandon the original water right?  Is never using or attempting to use excess water evidence of an intent to abandon the excess water (that is, water that is not being put to a beneficial use)?
  • 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?

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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?

Some states apply a concept of forfeiture so intent is NOT a consideration.  Instead, non-use of the water is all that needs to be established.

Rencken v. Young, Oregon, 1985 (p. 195 of Weber's 9th 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 and thus is not a use of the water.

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  • Who has the burden of proof? Proponents of cancellation must show the non-use; 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? HINT -- the state does not need to prove an "intent to abandon" by the nonuser. 
  • 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 state administrative 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 inspection
    • When an appropriator fails to apply water to the beneficial use cited in the permit or ceases to use the water for the beneficial use cited in the permit for three successive years, the state engineer may declare the water permit or right forfeited.

    • Exception:  if the failure or cessation of use has been due to the unavailability of water, a justifiable inability to complete the works, or other good and sufficient cause, the state engineer may not declare the water permit or right forfeited.

  • N.D.C.C. §61-04-24 notice
    • If it appears that any water appropriation or portion thereof has not been used for a beneficial use, or ... ceased to be used for that purpose for more than three successive years, the state engineer shall set a place and time for a hearing. ... Prior to the hearings, the state engineer shall serve notice upon the permitholder and upon the owners of land  benefited by the appropriation or works...

  • N.D.C.C. §61-04-25 hearing
    • ... the verified report of the state engineer or engineers of the state water commission is prima facie evidence for the forfeiture and cancellation of the water permit or portion thereof... if it appears that the water has not been put to a beneficial use, or the beneficial use has ceased for more than three successive years, the water right (or a portion thereof) must be declared forfeited and canceled.

  • N.D.C.C. §61-04-26 recording result
  • 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?

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Utah statute 73-1-4 Reversion to the public by abandonment or forfeiture for nonuse within seven years

 (2) (a) When an appropriator or the appropriator's successor in interest abandons or ceases to use all or a portion of a water right for a period of seven years, the water right or the unused portion of that water right is subject to forfeiture in accordance with Subsection (2)(c), unless the appropriator or the appropriator's successor in interest files a nonuse application with the state engineer.

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  • 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.
    • Is delivering surplus water as required by N.D.C.C. §61-04-17 a beneficial use that would prevent forfeiture (if the permit holder does not put the excess water to a beneficial use for more than three years), or does this statute merely state what a water user must do during the three years of non-use prior to forfeiture?
  • Does a water right last forever?

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Prescription

Can a water right be lost to another water user based on the legal concepts of adverse possession or prescription?  Conversely, can a water right be acquired by using the water without permission?

Archuleta v. Gomez, Colorado, 2009 (p. 203, Weber's 9th ed.)

  • Archuleta sought to enjoin Gomez seeking restoration of three ditch right-of-ways and delivery of water
  • Gomez argued against the injunction on the basis that Gomez had adversely possessed Archuleta's water right.
  • The water court agreed with Gomez; the Colorado Supreme Court reversed and remanded.
  • A water user can acquire the water right of another user by adverse possession if the possession is actual, adverse, hostile, under a claim of right, open, notorious, exclusive and continuous for the prescribed statutory period.
  • Water of the state cannot be adversely possessed; therefore, 1) adverse possession can arise between two water users only if the adverse possession occurs after the water has been diverted from the original source (before the water is diverted from its original source, it is considered the state's) and 2) an abandoned water right cannot be adversely possessed because once it is abandoned, the right has returned to the state.
  • In this case, if Archuleta abandoned the water, Archuleta cannot reclaim it (and thus is not entitled to the injunction against Gomez) and Gomez cannot claim the water right through adverse possession from Archuleta.  If Archuleta abandoned the water, it is the state's ("belong to the stream").
  • Gomez can claim some of Archuleta's (unabandoned) water right to the extent Gomez was using more water than Gomez was entitled to and the excess water used by Gomez was Archuleta's water.  The Supreme Court determined that Gomez had not established (proven) an "excess" water use.
    • For example, Gomez, the court suggests, could have shown excess use by documenting that he was using more water and Archuleta was using less water than in the past. 
  • Remanded but the quantity of water that remains Archuleta, that is adversely possessed by Gomez and that has been abandoned by Archuleta cannot exceed the water consumptively used by the previous landowner/water user.

Colorado still allows water rights to be lost (and accordingly acquired) via adverse possession/prescription.

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Turner v. Bassett, New Mexico, 2003 (case is not included in Weber's 9th ed.; but it is mentioned on p. 210)

  • 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.

The author's note on p. 210 suggests that the New Mexico law may not be this clear.

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Hammond v. Johnson, Utah, 1937 (mentioned on p. 208 of Weber's 9th 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 the party argues that the 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 the appropriation statute, and not adverse possession.
  • Court states that water appropriation statute applies only to unappropriated waters, but private waters can be acquired (taken?) 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 re-appropriation according to the statute?
    • Comment:  note how this dissent aligns with statements made by the Colorado court in Archuleta v. Gomez.

Utah reversed this 1937 decision by enacting a statute soon thereafter preventing water rights from being acquired by prescription (p. 208, Weber's 9th ed.).

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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 for more than twenty years prior to July 1, 1963, is deemed a water right.
  • The purpose of this North Dakota statute is to clarify water rights that arose in the past (especially those 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.
  • If a water user cannot acquire a water right by adversely using another person's water, it is implied that a water user cannot lose a water right via adverse possession or prescription.

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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.

  • Enforce your property right or risk losing them!!

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Expiration date for Water Right

Some states assume a water permit does not have an infinite duration.

The authors' comment (p. 330, Weber's 9th ed) that water permits in riparian states (as permits become more common in riparian states) have included expiration dates.  Prior appropriation states have not taken that stance.

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Closing Thought

A water right will not last forever, especially if the water is not being put to a beneficial use by the holder of the water right.

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Disclaimer

Email:  david.saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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