2015 CO 17
Colo.2015Background
- Tip Jack water right: decreed in 1898 for 2.0 cfs for irrigation; point of diversion moved by decree in 1978 to below Bonny Reservoir.
- The Jim Hutton Educational Foundation (successor to Jim Hutton) owns the 4,000-acre ranch and the Tip Jack ditch. Engineers placed the Tip Jack water right on the 2010 Revised Decennial Abandonment List for nonuse.
- Engineers proved the decreed 1978 diversion point was never used and that the Foundation did not divert at that decreed point for over ten years; the Foundation does not dispute nonuse at that decreed point.
- Foundation’s position: water was diverted via the Hutton 2 diversion point and pumped into the Tip Jack ditch (an undecreed point of diversion); offered aerial photos and evidence of ditch maintenance and related real-estate and transaction activity.
- Water court ruled for the Foundation, finding insufficient proof of abandonment and that the Foundation rebutted any presumption via maintenance, transactions, conservation easement, pledges, leasing, and evidence of ditch use east of Hale Road.
- Supreme Court: held that nonuse of the decreed point for 10+ years triggers the statutory rebuttable presumption of abandonment and remanded for the water court to determine whether the Foundation rebutted that presumption.
Issues
| Issue | Plaintiff's Argument (Engineers/RRWCD) | Defendant's Argument (Foundation/Hutton) | Held |
|---|---|---|---|
| Whether nonuse of the decreed point for 10+ years triggers statutory presumption of abandonment | Nonuse of the decreed diversion point for ten years establishes the presumption under § 37-92-402(11) | Nonuse at the decreed point alone is insufficient if water was actually used via an undecreed diversion | Held for Engineers: proving nonuse of the decreed point for 10+ years triggers the rebuttable presumption; burden shifts to the water right holder to rebut |
| Whether undecreed diversions can rebut the presumption | Presumption stands; holder must prove facts excusing nonuse or lack of intent to abandon | Undecreed diversions (long-term use at another point) demonstrate nonabandonment (citing Lengel/Means) | Court remanded: undecreed diversion evidence may rebut the presumption but water court must reassess whether Foundation met its rebuttal burden |
| What evidence suffices to rebut presumption and allocation consequences | Rebuttal requires more than self-serving statements; holder must show facts excusing nonuse or intent not to abandon | Maintenance, transactions, conservation easement, leasing, and aerial photos show continued use/intent | Court reiterated standard: holder must produce evidence beyond self-serving statements; water court must reevaluate under that legal standard |
| Effect of finding use via undecreed diversion on historical consumptive-use accounting | Engineers: even if rebuttal succeeded, undecreed use should not expand historical water credits | Foundation: long-term undecreed use should count toward non-abandonment | Court noted prior precedent: undecreed diversions do not add consumptive-use credits in change proceedings (counts as zero years) and remanded factual determination on nonabandonment only |
Key Cases Cited
- City & Cnty. of Denver v. Middle Park Water Conservancy Dist., 925 P.2d 283 (factual review of abandonment findings)
- Haystack Ranch, LLC v. Fazzio, 997 P.2d 548 (presumption of intent; burden to rebut; circumstantial inference of intent)
- Twin Lakes Ditches & Water Works, Inc. v. Bd. of Cnty. Comm'rs, 76 P.3d 918 (factors relevant to rebutting abandonment presumption)
- Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (self-serving statements insufficient to rebut presumption)
- High Plains A & M, LLC v. Se. Colo. Water Conservancy Dist., 120 P.3d 710 (water right includes point of diversion; situs of right)
- Lengel v. Davis, 347 P.2d 142 (undecreed change in point/method is evidence of nonabandonment)
- Means v. Pratt, 331 P.2d 805 (possessory water rights not lost by diverting at undecreed points)
- Burlington Ditch Reservoir & Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645 (undecreed enlargement usage excluded from consumptive-use credit calculations)
- Santa Fe Trail Ranches Prop. Owners Ass'n v. Simpson, 990 P.2d 46 (undecreed diversion records cannot establish historical beneficial use)
- Williams v. Midway Ranches Prop. Owners' Ass'n, 938 P.2d 515 (abandonment disfavored in Colorado water law)