The intent to abandon a water right may be inferred through the circumstances of a case, and need not be proved directly. See City County of Denver v. Snake River Water Dist., 788 P.2d 772, 776 (Colo. 1990);Southeastern Colo. Water Conservancy Dist. v. Twin Lakes Assocs., 770 P.2d 1231, 1237 (Colo. 1989).
As the Water Court observed, intent to abandon “need not be proved directly, but may be inferred from all the circumstances of the case.” Denver by Bd. Of Water Comm'rs v. Snake River Water Dist., 788 P.2d 772, 776 (Colo.1990). “The circumstances must be such as to justify an inference of intention to abandon; in other words, to leave the property to be taken by any other person who chooses to do so.”
A review of our precedent reveals a number of different factors that Colorado courts have considered 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, Haystack Ranch, 997 P.2d at 554; Twin Lakes Assoc., 770 P.2d at 1237; (2) attempts to put the water to beneficial use, Haystack Ranch, 997 P.2d at 554; Twin Lakes Assoc., 770 P.2d at 1237; (3) active diversion records and non-appearance of the water right on the State Engineer's abandonment list, Haystack Ranch, 997 P.2d at 555; (4) diligent efforts to sell the water right, City and County of Denver v. Snake River Water Dist., 788 P.2d 772, 778 (Colo. 1990); People ex rel. Danielson v. City of Thornton, 775 P.2d 11, 20-22 (Colo. 1989); Beaver Park Water, Inc. v. City of Victor, 649 P.2d 300, 302-03 (Colo.
1989). Ecology also cites City County of Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990), where the court found the presumption of abandonment raised by a long period of nonuse of water right by a company that purchased a nonoperating power plant and its associated water right, and rejected the argument that no intent to abandon could be found because the owner had sold small portions of the water right on two occasions during a 29 year period. Ecology further maintains that the evidence shows that the District's only intent when purchasing the power plant was to utilize the storage rights to release water for downstream hydroelectric production, and that it has admitted on a number of occasions that it abandoned or terminated the project.
However, the general rule in western water law is that nonuse is evidence of intent to abandon, and long periods of nonuse raise a rebuttable presumption of intent to abandon, thus shifting the burden of proof to the holder of the water right to explain reasons for the nonuse. Id. at 5-107; see City County of Denver v. Snake River Water Dist., 788 P.2d 772, 776 (Colo. 1990) (29 years). In re Clark Fork River Drainage Area, 254 Mont. 11, 833 P.2d 1120, 1123 (1992) (nonuse by city of two water right claims for over 23 years created rebuttable presumption of abandonment though city continued to carry claims as assets on its books during periods of nonuse); State ex rel. Reynolds v. South Springs Co., 80 N.M. 144, 452 P.2d 478 (1969); Moore v. United Elkhorn Mines, 64 Or. 342, 127 P. 964, 967-68 (1912) (nonuse for 10 years raises rebuttable presumption of abandonment).
Intent is the critical element in determining abandonment. City and County of Denver v. Snake River Water Dist., 788 P.2d 772, 776 (Colo. 1990). Continued and unexplained non-use of a water right for an unreasonable period of time creates a rebuttable presumption of intent to abandon.
We reject Berthoud's claim that it cannot abandon its water right because of its status as a municipality. See, e.g., City and County of Denver v. Snake River Water Dist., 788 P.2d 772 (Colo. 1990) (finding abandonment of a hydroelectric water right when Denver provided no justification for nonuse of a water right); San Luis Valley Irrigation Dist. v. Alamosa, 55 Colo. 386, 135 P. 769 (1913) (holding that a municipal corporation abandoned a water right after an extended period of nonuse). The question of abandonment is a factual question to be determined by weighing all of the evidence and assessing the credibility of the witnesses.
Intent to abandon a water right may be inferred from all of the circumstances of the case and need not be proved directly. Heavirland , ¶ 31 (citing Denver by Bd. of Water Comm’rs v. Snake River Water Dist. , 788 P.2d 772, 776 (Colo. 1990) ). A long period of continuous nonuse creates a rebuttable presumption of intent to abandon; the claimant must produce specific evidence excusing the nonuse to rebut this presumption.
"[I]ntent to abandon ‘need not be proved directly, but may be inferred from all the circumstances of the case.’ " Heavirland , ¶ 31 (quoting Denver by Bd. of Water Comm’rs v. Snake River Water Dist ., 788 P.2d 772, 776 (Colo. 1990) ). If a continuous period of nonuse is established, the burden of proof then shifts to the claimant to produce specific evidence rebutting that presumed intent.
1982); Knapp v. Colo. River Water Conservation Dist., 131 Colo. 42, 279 P.2d 420, 426 (1955). Rather, successful rebuttal requires proof of some affirmative act that negates the owner's intent to relinquish his water right, such as repairs to the diversion structure, Haystack Ranch, 997 P.2d at 554, or diligent efforts to sell the water right, City & Cnty. of Denver v. Snake River Water Dist., 788 P.2d 772, 778 (Colo.1990). Accord E. Twin Lakes, 76 P.3d at 922 (listing factors that may refute the intent to abandon a water right). If such evidence is insufficient or non-existent, however, failure to put water to beneficial use is enough to sustain a finding of abandonment.