Hammel v. Simpson

Supreme Court of Colorado

Hammel v. Simpson

83 P.3d 1122, 2004 WL 187215

CourtSupreme Court of Colorado

DecidedFebruary 2, 2004

Docket03SA36

StatusPublished

This text of 83 P.3d 1122 (Hammel v. Simpson) 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

Hammel v. Simpson, 83 P.3d 1122, 2004 WL 187215 (Colo. 2004).

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Opinion

PER CURIAM.

In this abandonment ease, we apply the principles of law governing abandonment of a water right in Colorado. The critical element in any abandonment case is intent. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 552 (Colo.2000). Abandonment need not be proved directly; the water court may infer the intent to abandon from the facts of the case. Here, the trial court found that no beneficial use of water from the decreed well was made from at least 1974 to 1998.

Once a presumption of intent to abandon is established by non-use of water for ten years; the burden shifts to the owner of the water right to rebut this presumption. § 37-92-402(11), 10 C.R.S. (2003); East Twin Lakes Ditches & Water Works, Inc. v. Bd. of County Comm’rs, 76 P.3d 918 (Colo.2003). In order to rebut the presumption, the owner of the water right must present more than mere subjective declarations of a lack of intent to abandon the water right. Rather, the owner “must establish some fact or condition that excuses the nonuse or shows the owner’s intent not to abandon the water right.” Haystack Ranch, 997 P.2d at 552.

Because our review of the record does not disclose any evidence rebutting the presumption of abandonment, we affirm the water court’s order.

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PER CURIAM.

In this abandonment ease, we apply the principles of law governing abandonment of a water right in Colorado. The critical element in any abandonment case is intent. Haystack Ranch, LLC v. Fazzio, 997 P.2d 548, 552 (Colo.2000). Abandonment need not be proved directly; the water court may infer the intent to abandon from the facts of the case. Here, the trial court found that no beneficial use of water from the decreed well was made from at least 1974 to 1998.

Once a presumption of intent to abandon is established by non-use of water for ten years; the burden shifts to the owner of the water right to rebut this presumption. § 37-92-402(11), 10 C.R.S. (2003); East Twin Lakes Ditches & Water Works, Inc. v. Bd. of County Comm’rs, 76 P.3d 918 (Colo.2003). In order to rebut the presumption, the owner of the water right must present more than mere subjective declarations of a lack of intent to abandon the water right. Rather, the owner “must establish some fact or condition that excuses the nonuse or shows the owner’s intent not to abandon the water right.” Haystack Ranch, 997 P.2d at 552.

Because our review of the record does not disclose any evidence rebutting the presumption of abandonment, we affirm the water court’s order.

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Bluebook (online)

83 P.3d 1122, 2004 WL 187215, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammel-v-simpson-colo-2004.

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