City & County of Denver ex rel. Board of Water Commissioners v. Snake River Water District

788 P.2d 772, 14 Brief Times Rptr. 331, 1990 Colo. LEXIS 176, 1990 WL 25380
CourtSupreme Court of Colorado
DecidedMarch 12, 1990
DocketNo. 88SA365
StatusPublished
Cited by18 cases

This text of 788 P.2d 772 (City & County of Denver ex rel. Board of Water Commissioners v. Snake River Water District) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City & County of Denver ex rel. Board of Water Commissioners v. Snake River Water District, 788 P.2d 772, 14 Brief Times Rptr. 331, 1990 Colo. LEXIS 176, 1990 WL 25380 (Colo. 1990).

Opinions

Justice LOHR

delivered the Opinion of the Court.

The City and County of Denver, acting by and through its Board of Water Commissioners (“Board”), appeals the judgment of the District Court, Water Division No. 5 (“water court”), denying the Board’s application for certain changes of water rights. The water court found that the water rights, historically used to generate electric power at a site later inundated by the waters of Dillon Reservoir, had been abandoned and therefore “canceled” them.1 We affirm.

At issue are water rights in three ditches, located in Summit County near the Dillon Dam and Reservoir, decreed for the sole beneficial use of generation of electric power. They consist of a 59 cubic feet per second (“cfs”) right in the Straight Creek Ditch,2 a 35 cfs right in the Swanson Mill Ditch3 and a 160.14 cfs right in the Snake River Ditch4 (collectively, “the water [775]*775rights”). Each has an 1899 appropriation date. The Straight Creek and Swanson Mill ditches have their decreed points of diversion on Straight Creek, a tributary of the Blue River. Straight Creek enters the Blue River from the east a short distance below Dillon Dam. The Snake River Ditch has its decreed point of diversion on the Snake River, a tributary of the Blue River. The Snake River flows into Dillon Reservoir from the east.

For many years, the water rights were put to their decreed use — generation of electric power — to operate the Summit Hydro Plant (“the old power plant”), owned by Public Service Company of Colorado. In December 1959, however, Public Service Company permanently shut down the plant. In February 1960, the Board purchased the old power plant and its water rights from Public Service Company. Later that year the Board dismantled the old power plant to make way for the Dillon Dam and Reservoir, which was completed in 1963.

The Board did not seek permission from the federal government to construct a new power plant in the Dillon area until twenty-four years after the water rights were last used to generate power at the old power plant and twenty-one years after completion of the Dillon Dam. In February 1984, the Board requested an exemption from licensing from the Federal Energy Regulatory Commission, which would allow it to construct a new power plant on the Dillon Dam and Reservoir at a location different from that of the old power plant.5 The Board’s request was granted in August 1984. Construction began in 1986, and the Board began generating electricity at the new power plant on October 1, 1987. The water rights have never been used to produce power at the new power plant.

The water rights were placed on the July 1984 Abandonment List by the Division Engineer for Water Division No. 5.6 Later, the Board and the Division Engineer agreed, as the water court found, “that the water rights would be deleted from the Abandonment List if [the Board] would file [an application for change of water rights].”

The Board filed its application for change of water rights on December 19, 1986, more than two years after it had obtained the exemption from licensing so that it could build the new power plant. In its application, the Board requested approval for alternate points of diversion that would allow the Board to use the water rights to generate power at the new power plant. The appellees opposed the application on grounds that the Board had abandoned the water rights and that the changes sought by the Board could not be granted without injuring other appropriators.7

After conducting a three-day trial beginning June 7, 1988, the water court issued a written judgment and decree on September 7, 1988, containing detailed findings of fact and conclusions of law, and denying the Board’s application. The water court found that the Board had not used the water rights since acquiring them in 1960, a twenty-nine year period of non-use. The court held that this long period of non-use without adequate justification created a presumption of abandonment. The court further held that the Board had not rebut[776]*776ted the presumption, and consequently that the water rights had been abandoned.

II.

The principles of law governing the issue of abandonment are well-established. A water right can be terminated by abandonment. People v. City of Thornton, 775 P.2d 11, 17 (Colo.1989); Masters Inv. Co., Inc. v. Irrigationists Ass’n, 702 P.2d 268, 271-72 (Colo.1985); Sieber v. Frink, 7 Colo. 148, 154, 2 P. 901, 904 (1883). “Abandonment of a water right” is defined in the Water Right Determination and Administration Act of 19698 as “the termination of a water right in whole or in part as a result of the intent of the owner thereof to discontinue permanently the use of all or part of the water available thereunder.” § 37-92-103(2), 15 C.R.S. (1973); see, e.g., Farmers Reservoir & Irrigation Co. v. Fulton Irrigating Ditch Co., 108 Colo. 482, 487, 120 P.2d 196, 199 (1941) (basing a similar definition on common law principles). Intent is the critical element in determining abandonment. Masters, 702 P.2d at 271-72; Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300, 302 (Colo.1982). The requisite intent need not be proved directly but may be inferred from all the circumstances of the case. Southeastern Colorado Water Conservancy Dist. v. Twin Lakes Assoc., Inc., 770 P.2d 1231, 1237 (Colo.1989); Beaver Park, 649 P.2d at 302.

Continued and unexplained nonuse of a water right for an unreasonable period of time creates a rebuttable presumption of intent to abandon. Thornton, 775 P.2d at 18; Twin Lakes, 770 P.2d at 1237; Hallenbeck v. Granby Ditch & Reservoir Co., 160 Colo. 555, 567, 420 P.2d 419, 426 (1966). The amount of time considered to be “unreasonable” will necessarily vary with the facts of each case. Thornton, 775 P.2d at 18; Twin Lakes, 770 P.2d at 1238; cf. § 37-92-402(1), (11), 15 C.R.S. (1973 & 1989 Supp.) (for purpose of preparing division engineer’s 1978 abandonment tabulation, ten year period of nonuse when needed created rebuttable presumption of abandonment).

The presumption of abandonment shifts the burden of going forward to the water right owner to introduce enough evidence to rebut the presumption. Thornton, 775 P.2d at 18; Masters, 702 P.2d at 272. “[T]o rebut the presumption of abandonment arising from [a] long period of nonuse, there must be established not merely expressions of desire or hope or intent, but some fact or condition excusing such long nonuse.” Thornton, 775 P.2d at 18 (quoting Mason v. Hills Land & Cattle Co., 119 Colo.

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Bluebook (online)
788 P.2d 772, 14 Brief Times Rptr. 331, 1990 Colo. LEXIS 176, 1990 WL 25380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-county-of-denver-ex-rel-board-of-water-commissioners-v-snake-river-colo-1990.