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Colorado courts have considered a number of different factors as indicative of an intent not to abandon a water right. Significantly, although failure to put the water to beneficial use may give rise to the presumption of abandonment in the first instance, it is not the standard by which the second element, intent to abandon, has been measured. Instead, in determining whether or not an owner intended to abandon his water right, Colorado courts have looked at such factors as: (1) repair and maintenance of diversion structures; (2) attempts to put the water to beneficial use; (3) active diversion records and non-appearance of the water right on the state engineer's abandonment list; (4) diligent efforts to sell the water right; (5) filing documents to protect, change, or preserve the right; (6) leasing the water right; and (7) economic or legal obstacles to exercising the water right. While none of these factors is necessarily conclusive, their cumulative weight, as assessed by the water court, may be enough to rebut a presumption of abandonment. On the other hand, if these factors are insufficient or nonexistent, only then is the failure to put the water to a beneficial use enough by itself to sustain a finding of abandonment.
In 1998, Respondent Lake County Board of County Commissioners purchased a parcel of property known as the Hallenbeck Ranch from Twin Lakes Recreation Land Investment Company. This purchase included all of the ranch's water rights, including the Derry Ditch No. 1, a senior water right dating back to 1879. Twin Lakes had not been able to get water to flow down the full length of the Derry Ditch No. 1 since it purchased the property in 1972. Complainant, holder of a water right junior in priority to the Derry Ditch No. 1, filed suit claiming that the Derry Ditch No. 1 water right had been abandoned. Lake County conceded that the long period of non-use gave rise to a presumption of abandonment but argued that it had successfully rebutted that presumption. Lake County contended that neither it nor Twin Lakes ever intended to abandon the water right, and that they took numerous actions inconsistent with an intent to abandon. The water court agreed with respondent, and held that neither Twin Lakes nor Lake County had abandoned the water right. Complainant sought review of the decision.
Did the circumstances establish that the owners abandon the water rights in Derry Ditch No. 1?
The court affirmed the water court's holding that the water right was not abandoned. The court held that the record contained sufficient evidence to support the holding of the water court. Representatives of the owner and its predecessor testified that there was never an intent to abandon the water right. These statements, although valid evidence to be considered, were necessarily subjective and therefore fell well short of the proof necessary to rebut the presumption created by Colo. Rev. Stat. § 37-92-402(11) (2002). There was, however, an abundance of other objective evidence in the record regarding actions by the owner and its predecessor that were inconsistent with an intent to abandon the water right. These included 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 ranch and water rights, and financial obstacles to exercising the water right.