Thank You For Submiting Feedback!
Plaintiffs' existing appropriative right is measured not by the flow originally appropriated and not by the capacity of the diversion ditch, but by the amount of water put to beneficial use at the delivery point plus such additional flow as is reasonably necessary to deliver it.
Plaintiff landowners owned 240 acres of ranch land. The prior owners established an appropriative right to the entire flow of Morris Creek and built a diversion dam and ditch. Defendant corporation was issued an appropriative permit to transport pipeline through the water. Plaintiffs sought to quiet title to the water. The trial court entered judgment quieting title to plaintiffs as appropriative owners of all the water. The trial court held that the former owner and his successors had continually put to beneficial use all the water diverted to the land. Defendants challenged the decision.
Was the continued beneficial use of the water established, thereby justifying the decision of the trial court to quiet title to plaintiffs as appropriative owners of all the water?
The court reversed the order quieting title ruling that the evidence of continued beneficial use at the ranch did not support a finding of continued beneficial use at the point of diversion. The court held that evidence showed a possibility of partial forfeiture and defendant's request for specific findings should not have been rejected.