Colorado § 37-92-402 - Special procedures for the 1978 tabulation and abandonment list.

§ 37-92-402. Special procedures for the 1978 tabulation and abandonment list.

(1) (a) No later than July 1, 1978, the division engineer, with the approval of the state engineer, shall prepare a new tabulation of all water rights and conditional water rights in his division. The 1978 tabulation shall reflect any changes in the 1974 tabulation previously authorized by statute which the division engineer and the state engineer determine to be advisable based on the principles set forth in section 37-92-401 (1) to reflect correctly the priority of water rights. The 1978 tabulation shall reflect judgments and decrees determining, changing, or otherwise affecting water rights and conditional water rights, which judgments and decrees have been entered subsequent to those reflected in the 1974 tabulation and prior to January 1, 1978, shall modify any water rights or conditional water rights which the division engineer determines to have been abandoned in part, and shall omit any water rights or conditional water rights which the division engineer determines have been totally abandoned. Except as specified in the preceding sentence, the tabulation pursuant to this section shall make no changes in the listings in the 1974 tabulation other than changes to correct clerical errors. The division engineer shall prepare a separate list tabulating the water rights which he determines to have been abandoned in whole or in part. In making his determination with respect to abandonment, the division engineer shall investigate the circumstances relating to each water right, the water available under which has not been fully applied to a beneficial use, and in such cases shall be guided by the criteria set forth in subsection (11) of this section. In making such 1978 tabulation, the division engineer shall apply the criteria set forth in section 37-92-401 (1).

(b) The abandonment list provided for in this section, when concluded by judgment and decree, shall be conclusive as to water rights determined to have been abandoned. The listing of the water rights in the 1978 tabulation shall not create any presumption against abandonment, and the relative listing of water rights in the 1978 tabulation shall not create any presumption of seniority. The tabulation shall not be construed to modify special provisions of court decrees adjudicating, changing, or otherwise affecting such water rights or to modify contractual arrangements governing the interrelationship of such water rights. For the purpose of identification and description only, the tabulation may include additional information regarding the water rights listed, but this additional information shall neither be conclusive nor be presumptive of the truth or accuracy of the matters contained therein.

(2) No later than July 10, 1978, the division engineer shall publish a notice that the 1978 tabulation has been made and that such tabulation may be inspected or a copy obtained as specified in this subsection (2), and the division engineer shall mail a copy of such tabulation to each person whose name is on the list specified in section 37-92-302 (3)(c) and shall mail a copy of such tabulation by registered mail to the owner or last-known owner or claimant, if known, of every water right or conditional water right which the division engineer has found to have been abandoned in whole or in part or which has been changed adversely and shall publish the 1978 abandonment list. The division engineer shall make such examination as is reasonably appropriate to determine the owner or claimant of such water rights. The aforementioned publication shall be such as is necessary to obtain general circulation once in each county or portion thereof which is in the division by means of one or more newspapers which, if possible, are published in the division. A copy of such 1978 tabulation and abandonment list, together with any revisions, shall be available in the office of each division engineer and the offices of each water commissioner and each county clerk and recorder for inspection at any time during regular office hours, and the division engineer shall furnish or mail a copy to anyone requesting the same upon payment of a fee of five dollars.

(3) Not later than July 1, 1980, any person who wishes to object to the manner in which a water right or conditional water right is listed in the 1978 tabulation or abandonment list or to the omission of a water right or conditional water right from such tabulation shall file a statement of objection in writing with the division engineer. A fee of ten dollars shall be paid with such filing; except that no fee shall be required for any such filing to correct any clerical error.

(4) On or before July 1, 1984, the division engineer shall make such revisions, if any, as he deems proper in the 1978 tabulation and abandonment list. In considering the matters raised by statements of objections, the division engineer may consult with interested persons. The division engineer shall consult with the state engineer and shall make any revisions in the 1978 tabulation and abandonment list determined by the state engineer to be necessary or advisable. If the division engineer determines such to be advisable or if requested by the objector in the statement of objection, the division engineer shall hold an informal hearing on the subject matter contained in said statement of objection. The revised 1978 tabulation and abandonment list or, if there are no revisions, the original 1978 tabulation and abandonment list, signed by the division engineer and by the state engineer, shall be filed on or before July 1, 1984, with the water clerk. A copy of such 1978 tabulation and such abandonment list, together with any revisions, shall be available in the office of each division engineer and the offices of each water commissioner and each county clerk and recorder for inspection at any time during regular office hours, and the division engineer shall furnish or mail a copy to anyone requesting the same upon payment of a fee of five dollars. If the 1978 tabulation or the abandonment list is revised, the division engineer, on or before August 31, 1984, shall cause notice of such revisions to be included in the resume described in section 37-92-302 (3) of cases filed in the respective water divisions during the month of July, 1984, specifying that the revisions may be inspected or a copy thereof obtained as specified in this subsection (4). Such publication shall be made as is necessary to obtain general circulation once in each county or portion thereof which is in the division.

(5) The division engineer shall mail a copy of the abandonment list and any revisions thereto by registered mail to the owner or last-known owner or claimant, if known, of every water right which the division engineer has found to have been abandoned in whole or in part. The division engineer shall make such examination as is reasonably appropriate to determine the owner or claimant of such water rights. He shall also cause publication to be made of the abandonment list and any revisions thereto in each county in which water rights on the list are located. Such publication shall be made for four successive weeks and shall be published, if possible, in a newspaper published in the county where the water right is located. Any person who wishes to protest the inclusion of any water right on the abandonment list and any revisions thereto shall file a written protest in accordance with the procedures of section 37-92-401 (5); except that such protests shall be filed with the water clerk not later than December 31, 1984.

(6) Commencing on the March or April term-day of 1985, as the case may be in the respective divisions, pursuant to section 37-92-304 (1), and continuing for as long as may be necessary, the water judge of each division shall conduct hearings on the abandonment list and any revisions thereto filed by the division engineer and any protests that have been filed with respect thereto. The hearings shall be conducted in accordance with the provisions of section 37-92-401 (6).

(7) If no protests have been filed, then not later than July 1, 1985, the water judge shall enter a judgment and decree incorporating and confirming the abandonment list and any revisions thereto of the division engineer without modification.

(8) A copy of the judgment and decree entered pursuant to subsection (6) or (7) of this section shall be filed with the state engineer and the division engineer and shall be provided by the water clerk to any other person requesting same upon payment of a fee of seventy-five cents per page. Promptly after receiving such judgment and decree, the division engineer and the state engineer shall enter in their records the determinations therein made as to date of priority, date of adjudication, and volume and amount of the water rights and conditional water rights adjudged to have been abandoned and shall regulate the distribution of water accordingly.

(9) Appellate review shall be allowed to the judgment and decree entered pursuant to subsection (6) or (7) of this section or any part thereof as in other water matters, but no appellate review shall be allowed with respect to that part of such judgment or decree which confirms a portion of the abandonment list and any revisions thereto with respect to which no protest was filed.

(10) Clerical mistakes in the judgment and decree entered pursuant to subsection (6) or (7) of this section may be corrected by the water judge on his own initiative or on the petition of any person, and substantive errors therein may be corrected by the water judge on the petition of any person whose rights have been adversely affected thereby and a showing satisfactory to the water judge that such person, due to mistake, inadvertence, or excusable neglect, failed to file a protest to the abandonment list and any revisions thereto with the water clerk within the time specified in this section. Any petition referred to in the preceding sentence shall be filed with the water clerk within four years after the date of the entry of said judgment and decree. The water judge shall order such notice of any such correction proceedings as he determines to be appropriate to advise all persons who may be affected thereby. Any order of the water judge making such corrections shall be subject to appellate review as specified in subsection (9) of this section.

(11) For the purpose of procedures under this section, failure for a period of ten years or more to apply to a beneficial use the water available under a water right when needed by the person entitled to use same shall create a rebuttable presumption of abandonment of a water right with respect to the amount of such available water which has not been so used; except that such presumption may be waived by the division engineer or the state engineer if special circumstances negate an intent to abandon.

(12) No proceeding previously initiated before the water judge pertaining to the 1974 tabulation referred to in previous statutes shall be maintained; except that the dismissal of any such proceeding shall be without prejudice with respect to any substantive matters alleged therein.

(13) The use and effect of the 1978 tabulation, as distinguished from the abandonment list, shall be governed by the provisions of section 37-92-401 (11).

(14) The provisions of this section shall apply only to the 1978 tabulation and abandonment list authorized by this section.

(15) Notwithstanding the amount specified for any fee in this section, the state engineer by rule or as otherwise provided by law may reduce the amount of one or more of the fees if necessary pursuant to section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which all or any portion of one or more of the fees is credited. After the uncommitted reserves of the fund are sufficiently reduced, the state engineer by rule or as otherwise provided by law may increase the amount of one or more of the fees as provided in section 24-75-402 (4), C.R.S.

Source: L. 69: p. 1214, § 1. C.R.S. 1963: § 148-21-28. L. 73: p. 1528, §§ 3, 4. L. 75: Entire section amended, p. 1399, § 2, effective July 1. L. 79: (1)(b) amended, p. 1380, § 1, effective May 18. L. 81: (4) to (7) amended, p. 1789, § 4, effective July 1. L. 83: (1) to (4) and (6) to (10) amended, (13) and (14) added, and (5) R&RE, pp. 1436, 1438, 1439, §§ 5-7, effective June 16; (8) amended, p. 1429, § 4, effective July 1. L. 98: (15) added, p. 1346, § 78, effective June 1.

Editor's note: Amendments to subsection (8) by Senate Bill 83-90 and House Bill 83-1255 were harmonized.

Cross references: For publication of legal notices, see part 1 of article 70 of title 24; for water clerk preparing resume of applications for water rights each month, see § 37-92-302 (3).

ANNOTATION

Law reviews. For comment, "Maximum Utilization Collides With Prior Appropriation in A-B Cattle Co. v. United States", see 57 Den. L.J. 103 (1979). For comment, "Town of De Beque v. Enewold: Conditional Water Rights and Statutory Water Law", see 58 Den. L.J. 837 (1981).

Annotator's note. Since § 37-92-402 is similar to repealed C.R.C.P. 99, relevant cases construing that provision have been included in the annotations to this section.

Under former C.R.C.P. 99, abandonment of a priority in an irrigation ditch was a matter that properly may be litigated in a suit to change the point of diversion of water. Flasche v. Westcolo Co., 112 Colo. 387, 149 P.2d 817 (1944).

When water is abandoned it is abandoned to the stream. City & County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971).

An asserted water right which never comes into being cannot be "abandoned". Green v. Chaffee Ditch Co., 150 Colo. 91, 371 P.2d 775 (1962).

It is not reasonable to suppose that priority of right to water, where water is scarce, or likely to become so, will be lightly sacrificed or surrendered by its owner, nor shall the owner of a right be held to have surrendered it (or merged it) except on reasonably clear and satisfactory evidence. Saunders v. Spina, 140 Colo. 317, 344 P.2d 469 (1959).

Abandonment of water right must be proven by preponderance of evidence. Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990).

Where there was evidence to support the water court's finding that there was no intent to abandon a water right, the appellate court must affirm that finding since this is largely a fact question. In re Orr v. City & County of Denver, 194 Colo. 125, 572 P.2d 805 (1977); Masters Inv. Co. v. Irrigationists Ass'n, 702 P.2d 268 (Colo. 1985); Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990).

Diligent efforts to sell water rights shows an intent not to abandon such rights. Denver v. Snake River Water Dist., 778 P.2d 772 (Colo. 1990).

Testimony of owner regarding desire to place a water right on the market for sale, absent other consistent and competent rebuttal evidence, will not defeat presumption of abandonment. People v. City of Thornton, 775 P.2d 11 (Colo. 1989).

A court will require clear and convincing proof before concluding that a person abandoned an 1885 water right, one of the oldest on a river in an arid or semiarid area. Lengel v. Davis, 141 Colo. 94, 347 P.2d 142 (1959).

"Unreasonable" period of nonuse is prima facie case of abandonment. Upon a showing that there has been an "unreasonable" period of nonuse, a prima facie case of abandonment is made, which in turn shifts the burden of going forward to the water rights' owner, who may then introduce evidence sufficient to rebut the presumption established by nonuse. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); Masters Inv. Co. v. Irrigationists Ass'n, 702 P.2d 268 (Colo. 1985); SE Colo. Water Cons. v. Twin Lakes Assoc., 770 P.2d 1231 (Colo. 1989); People v. City of Thornton, 775 P.2d 11 (Colo. 1989); Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990).

Abandonment of a water right requires a concurrence of nonuse and intent to abandon. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); People v. City of Thornton, 775 P.2d 11 (Colo. 1989).

Intent is the very essence of abandonment. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); Masters Inv. Co. v. Irrigationists Ass'n, 7002 P.2d 268 (Colo. 1985); People v. City of Thornton, 775 P.2d 11 (Colo. 1989); Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990).

Evidence that water rights were not used because they were not needed is probative of the question of intent. Masters Inv. Co. v. Irrigationists Ass'n, 702 P.2d 268 (Colo. 1985).

As long as an appropriator continues the use of his rights without an unreasonable period of voluntary cessation, abandonment will not be presumed against him. Saunders v. Spina, 140 Colo. 317, 344 P.2d 469 (1959).

Nonuse alone will not establish abandonment where the owner introduces sufficient evidence to show that during the period of nonuse there never was any intention to permanently discontinue the use of the water. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); People v. City of Thornton, 775 P.2d 11 (Colo. 1989).

Intent may be shown either expressly or by implication, with nonuse for a long period of time being evidence of an intent to abandon. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); Masters Inv. Co. v. Irrigationists Ass'n, 702 P.2d 268 (Colo. 1985); SE Colo. Water Cons. v. Twin Lakes Assoc., 770 P.2d 1231 (Colo. 1989); Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990).

Acceptable justifications for nonuse are limited. While reasonable justification may exist for excusing a period of nonuse, acceptable justifications are extremely limited. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); People v. City of Thornton, 775 P.2d 11 (Colo. 1989).

Self-serving statements of intent by the owner of the water rights are insufficient by themselves to rebut a presumption of abandonment. Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300 (Colo. 1982); SE Colo. Water Cons. v. Twin Lakes Assoc., 770 P.2d 1231 (Colo. 1989); Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990).

Subsection (11) sets forth that 10 years will be deemed an unreasonable period of nonuse for purposes of the abandonment list. People v. City of Thornton, 775 P.2d 11 (Colo. 1989).

Where plaintiffs claim right to prior use of water, the burden is upon them to show a better record title than defendants, or that defendants have abandoned or waived their prior rights. Saunders v. Spina, 140 Colo. 317, 344 P.2d 469 (1959).

A party alleging abandonment, thereby assumes the burden of definitely proving abandonment as a fact by clear and convincing evidence. Cline v. McDowell, 132 Colo. 37, 284 P.2d 1056 (1955); Pouchoulou v. Heath, 137 Colo. 462, 326 P. 656 (1958); Means v. Pratt, 138 Colo. 214, 331 P.2d 805 (1958).

Abandonment is question of fact and water court's determination will not be disturbed on appeal unless the evidence is wholly insufficient to support the decision. People v. City of Thornton, 775 P.2d 11 (Colo. 1989).

The water judge correctly found that the presumption of abandonment created by the failure to put a water right to beneficial use for approximately 30 years was rebutted by an abundance of objective evidence regarding actions taken by the water right owner that are inconsistent with an intent to abandon, including attempts to repair the ditch and divert water, the filing of legal documents with regard to the water right, the fact that the water right never appeared on the state engineer's abandonment list, the lease of the water right, diligent efforts to sell the water right along with the ranch, and financial obstacles to exercising the water right. E. Twin Lakes Ditches & Water Works, Inc. v. Bd. of County Comm'rs, 76 P.3d 918 (Colo. 2003).

Mere failure to pay taxes on property does not constitute abandonment. Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970).

A change in the method or means of conveying appropriated water from the source of supply to the point of beneficial use is not evidence of abandonment, likewise the unauthorized, unprotested change of the point of diversion is not evidence of abandonment; on the other hand, it is evidence of nonabandonment. Lengel v. Davis, 141 Colo. 94, 347 P.2d 142 (1959).

Where the evidence disclosed that a water user intended to and thought he was diverting water under a decreed priority of a ditch, and had so diverted and used such water for many years, no intention to abandon could be inferred. Means v. Pratt, 138 Colo. 214, 331 P.2d 805 (1958).

While use of a water right at an undecreed point of diversion is not evidence of intent to abandon, failure to use a water right at its decreed point of diversion for at least 10 years creates a rebuttable presumption that the water right holder has abandoned the right, which shifts the burden to the water right holder to rebut this presumption. Because the water court erroneously believed that proof of nonuse at the decreed point of diversion was insufficient to raise the presumption, it failed to require evidence excusing such nonuse in order to rebut the presumption. Wolfe v. Jim Hutton Educ. Found., 2015 CO 17, 344 P.3d 855.

Where designated fractional amounts of a water priority are conveyed to grantees, the use by one user in the ditch of water to which another user is entitled does not prevent abandonment by the second user. City & County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971).

Where holders of a designated fractional amount of water priority made no use of it for at least 34 years and there was not a shred of evidence to negate abandonment, the court must rule that there was abandonment. City & County of Denver v. Just, 175 Colo. 260, 487 P.2d 367 (1971).

Where water rights appropriated for use on plaintiffs' land had not been used thereon for more than 18 years, a finding by the trial court that such right had long been abandoned, was not error. Kaess v. Wilson, 132 Colo. 443, 289 P.2d 636 (1955).

And, where the evidence established that a headgate had not been replaced in at least fifty years, and that a ditch was in disrepair a finding by the water court that abandonment had occurred was not error. Masters Inv. Co. v. Irrigationists Ass'n, 702 P.2d 268 (Colo. 1985).

Federal reserved water rights are immune from Colorado's nonuse requirement to the extent necessary to fulfill the purposes of the reservation. United States v. City & County of Denver, 656 P.2d 1 (Colo. 1982).

Seniority of federal reserved water rights. The federal government's position is similar to the holder of a conditional senior water right who can step ahead of junior appropriators causing a diminution of the amount of water available for diversion. Navajo Dev. Co. v. Sanderson, 655 P.2d 1374 (Colo. 1982).

For effect of federal reserved water rights, see Navajo Dev. Co. v. Sanderson, 655 P.2d 1374 (Colo. 1982).

PART 5

REGULATION OF WATER - VIOLATIONS

Cross references: For the appointments and functions of water division engineers, see § 37-92-202.