7776

• UCREFRP Catalog Number: 7776
• Author: Paddock, W. A. and W. C. Weiss.
• Title: A Primer on Colorado Water Law.
• USFW Year: 1986.
• USFW - Doc Type: \
• Copyright Material: NO

6. Loss of the right
There are three ways in which a water right may be lost. An ab-
solute water right may be lost either by abandonment or adverse
possession. A conditional water right may be lost by abandonment
or forfeiture.
a. Abandonment
Abandonment has two elements, nonuse and intent to relinquish the
right.60/ All or just a portion of a water irht may be aban-
doned. The question of the intent of an owner of a water right
is essentially a question of fact.61/ Nonuse for an unreasonable
period of time creates a presumption of abandonment.62/ Section
37-90-402(11), C.R.S. (1985 Supp.) creates a presumption of aban-
donment after 10 years of nonuse. To rebut the presumption aris-
ing from long periods of nonuse, there must be established more
than mere expressions of a desire or hope or intent to use water
but, rather, some fact or condition excusing such long nonuse.63/
When unaided by the presumption, abandonment becomes a question
of fact which must be established by evidence of both nonuse and
intent to abandon.64/
The burden of proof is on the party who is asserting abandonment
to establish an intent to abandon by a preponderance of the evi-
dence. Section 13-25-127(1), C.R.S. (1973).65/ Once a water
right has been abandoned, subsequent attempts to use the water
will not revive the right.66/ The water which has been abandoned
reverts to the stream and may be taken by other appropriators ac-
cording to their priorities.67/
b. Adverse possession
To establish a water right by adverse possession it is necessary
for the claimant to prove that his possession was actual, ad-
verse, hostile, under claim of right, open, notorious, exclusive
and continuous for the prescribed statutory period.68/ To make
out adverse use, the claimant must be in actual possession of the
water, using it himself.69/ Open and notorious use requires that
the owner of the water right be on notice that his right is being
invaded.70/ To make out hostile use, the use must not be permis-
sive and there must not be sufficient water to supply both the
needs of the owner and those of the adverse claimant.71/ Contin-
uous use must be uninterrupted for the statutory time period and
exclusive of the true owner.72/ The statutory time period is 18
years. Section 38-41-101, C.R.S. (1982).73/
Adverse possession may not be effected against all other users
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