Opinion
No. 03SA36.
February 2, 2004.
Appeal from the District Court, Water Division 3, Case No. 02CW17 Honorable Robert W. Ogburn, Judge.
JUDGMENT AFFIRMED.
No. 03SA36, Clarence G. Hammel v. Hal Simpson, State Engineer; Rio Grande Canal Water Users Association — Abandonment of Water Rights Pursuant to § 37-92-402(11), 10 C.R.S. (2003).
The owner of a water right protested the water court's finding of abandonment. The water court found no evidence rebutting the statutory presumption resulting from ten years of non-use. Finding no evidence in the record rebutting the presumption of abandonment, the Supreme Court affirms the water court's judgment.
Anthony L. Martinez, Salida, Colorado, Attorney for Petitioner-Appellant.
Ken Salazar, Attorney General, Lori J. Coulter, Assistant Attorney General, Shana Smilovits, Assistant Attorney General, Denver, Colorado, Attorneys for Respondents-Appellees.
In this abandonment case, 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.