Summary
In CFI Steel there was no evidence of any efforts to lease, sell, or otherwise use the water rights during this long period of nonuse, and CFI had dismantled its diversion and transportation works, making it impossible to divert water at its decreed points.
Summary of this case from People v. ThorntonOpinion
No. 25931
Decided October 29, 1973.
Proceedings by steel company to change the points of diversion of decreed water rights. Trial court dismissed the proceedings on the ground that the water rights had been abandoned and steel company appealed.
Affirmed
1. WATER RIGHTS — Change — Points of Diversion — Abandonment — Appearance — Not Timely — Standing to Object — Prejudice — Negative. In proceedings by steel company to change points of diversion of decreed water rights, where river water conservancy district's participation in such proceedings was limited solely to making of objections and to cross-examination of steel company's witnesses, and where, if there had been no cross-examination by district, basis and soundness of court's conclusion of abandonment would remain unchanged, held, under the circumstances, appearance of district — which allegedly did not make timely appearance and did not have standing to object — was without prejudice to steel company.
2. Abandonment. Abandonment of water rights occurs when there is nonuse coupled with an intention to abandon.
3. Abandonment — Nonuse — Unreasonable Period — Rebuttable Presumption. Nonuse of water rights for an unreasonable period creates a rebuttable presumption that there was an intention to abandon.
4. Fifty-four Years — Nonuse — Unreasonable — Intention to Abandon. Fifty-four years of nonuse was an unreasonable period and created a rebuttable presumption that there was an intention to abandon water rights.
5. Presumption of Abandonment — Nonuse — Rebut — Proof — Fact — Economic Factors — Negative. To 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; claimed economic factors do not satisfactorily accomplish this.
6. Abandonment — Decreed — Possible Use — Negative. In viewing the issue of abandonment, one must look to the water right as decreed and not to some possible use at some undesignated place.
Appeal from the District Court in and for Water Division No. 2, Case Nos. W-124 and W-125, Honorable William L. Gobin, Judge.
Welborn, Dufford, Cook, Phipps Brown, John A. Dates, for appellant.
Davis, Graham Stubbs, Jon N. Halverson, Charles D. Calvin, for appellee, Purgatoire River Water Conservancy District.
Moses, Wittemyer and Harrison, P.C., Raphael J. Moses, Harry R. Sayre, for appellee, City of Trinidad.
Plaintiff-appellant (CFI) commenced proceedings to change the points of diversion of decreed water rights. At the conclusion of CFI's testimony, the court dismissed the proceedings on the ground that the water rights had been abandoned. We affirm.
The city of Trinidad timely filed a statement of opposition, alleging abandonment. About a year later and prior to any hearing the Purgatoire River Water Conservancy District (called the District) entered its appearance and alleged abandonment. The court held a hearing under CFI's application for change of points of diversion approximately two months following the District's entry of appearance.
For many years prior to 1918 CFI operated a number of small coal mines and had washeries at each mine. The water here involved was used at the Sopris Mine in the Purgatoire River Valley. In 1918 CFI constructed a central washery at Pueblo and discontinued the smaller washeries. At that time it removed its pipeline and pumps used to convey the water at the Sopris Mine. CFI has made no use of this water since that time.
In 1950 CFI opened its Allen Mine and in 1959 made an economic feasibility study as to a washery at the Allen Mine. Nothing resulted from this. In 1972 it made a preliminary design study on the same subject. The present proceeding is to authorize points of diversion so that the water could be used in a washery at the Allen Mine. However, CFI has not yet determined whether it will construct such a washery. In its brief CFI states: "The economic (or cost) factors considered by CFI are constantly changing and it may become economically feasible to construct the washery at the Allen Mine at any time." (Emphasis supplied).
I.
CFI asked reversal for the reason that the District did not make a timely appearance and, not having a vested interest in water rights, did not have standing to object. It is not contended that Trinidad's objection was not timely nor that it did not have standing. As already indicated, the case was dismissed at the conclusion of CFI's testimony, and neither Trinidad nor the District presented any evidence.
The participation in the hearing by Trinidad was limited solely to the making of objections and to cross-examination of CFI's witnesses.
Counsel for the District made three objections. After the first objection, counsel for CFI withdrew his question. CFI cannot complain when it voluntarily removed the objection from consideration by the court. The second was to join in an objection already made by counsel for Trinidad. The third was to the admission of an exhibit offered by CFI, which objection was overruled. Therefore, the objections by the District could not have prejudiced CFI.
[1] We have considered the transcript of the evidence, with and without the cross-examination of witnesses by the District. All matters material to the court's findings and conclusions were developed fully in the cross-examination by Trinidad. In other words, if there had been no cross-examination by the District, the basis and soundness of the court's conclusion of abandonment would remain unchanged. The appearance of the District, therefore, was without prejudice to CFI. If Trinidad prevails on the issue of abandonment, lack of timeliness or standing on the part of the District will not breathe life into the dead right.
With the foregoing determination on our part, we do not reach the questions of timeliness of the District's protests and of its standing to do so. If the statute were unchanged we might have an obligation to the water courts of the state — and to those who might be concerned — to rule on timeliness of objection. The statute, however, has been amended in material part as to the question here, and any ruling by us would be largely, if not wholly, academic to the water fraternity. 1969 Perm. Supp., C.R.S. 1963, 148-21-20(1) and 1971 Perm. Supp., C.R.S. 1963, 148-21-20(1).
II.
[2-4] No citation of authority is required for the basic proposition that abandonment occurs when there is non-use coupled with an intention to abandon. Non-use for an unreasonable period creates a rebuttable presumption that there was an intention to abandon. Sieber v. Frink, 7 Colo. 148, 2 P. 901 (1883). Here, 54 years of non-use was an unreasonable period in the light of 20 years being so held in San Luis Valley Irrigation District v. Alamosa, 55 Colo. 386, 135 P. 769 (1913), and 40 years being so held in Sieber v. Frink, supra. The question thus becomes, Did the trial court err in finding that CFI did not overcome the presumption of abandonment?
The CFI position is contained in the following excerpts from its brief:
"The uncontradicted facts established by CFI establish a valid reason for the original and continued nonuse of this water. CFI bowed to the economic facts of life in 1918 and, since that date, it has continually surveyed the constantly changing economic facts. Neither 'hopes' nor 'desires' have been involved in this process. The only reason for the nonuse of these water rights stems from those economic facts and, unfortunately, no person or company is immune from economics.
* * *
"We submit that the water court erred as a matter of law in that it applied a rather simplistic test to the undisputed facts of this case. Under Colorado law, the intent to abandon cannot be presumed or inferred unless there is an absence of proof of some fact or condition excusing the nonuse. In this case, there was no absence of such proof, but, rather, CFI established by undisputed facts that there was 'some fact or condition excusing the nonuse.' Substantial economic and practical factors required that the use of these water rights be discontinued and those factors remained in force as compelling reasons for continued nonuse until such time as CFI went to a single source of coking coal. At that point, the shifting factors of transportation costs, mining costs and washing costs, together with the high capital expenditure required for a new coal washery at the Allen Mine, have had an inhibiting effect, but, notwithstanding these practical and economic difficulties, CFI has set aside the requisite land for this washery, caused an economic feasibility study to be performed and secured a preliminary design study."
[5] We approve, however, of the following statement by the trial judge further in the judgment:
"'To rebut the presumption of abandonment arising from such 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.' Knapp v. Water District, 131 Colo. 42, 279 P.2d 420. The claimed economic factors do not satisfactorily accomplish this."
We cannot accept the economics-justified-non-use argument. Considering the large demands for all of the appropriatable water in this state and the consequent high value of water, it might be said that nearly every abandoned water right could have its non-use justified by the economics that might prevail sometime in the future for use of this water at some other place. This gleam-in-the-eye philosophy is not consistent with the protection and preservation of existing water rights.
CFI has cited Hallenbeck v. Granby Ditch Res. Co., 160 Colo. 555, 420 P.2d 419 (1966), several times in its brief. It is true that it was there said that a "reasonable justification for non-use may very well exist where it can be shown that economic, financial or legal difficulties or natural calamities prevented the storing of all the water that was originally decreed." In Hallenbeck financial difficulties, especially during the depression years, curtailed the reservoir owner's ability to keep the reservoir in peak operating condition. It appears that there were continuous expenditures and that as the owner's financial capability increased, the construction was performed which permitted full use of the decreed water rights. Hallenbeck presented a vastly different picture than we have here. CFI made it impossible to divert water at its decreed points and did not use a drop of water for 54 years.
[6] In viewing the issue of abandonment, one must look to the water right as decreed and not to some possible hoped-for future use at some undetermined place.
III.
We find the argument that washing coal constitutes a low consumptive use of water to be without merit.
Judgment affirmed.
MR. JUSTICE LEE does not participate.