Summary of a Recent
Judicial Development in
Water Law

User Claiming Adverse Possession of Water Right Must Show
Beneficial Use and Quantification

L. Paul Goeringer
National AgLaw Center Research Associate

Summary of Decision

In Archuleta v. Gomez, 200 P.3d 333 (Colo. 2009), the Colorado Supreme Court reversed the decision of a water court's finding that an irrigation water user had adversely possessed the adjudicated irrigation water rights of another. The state supreme court held that a showing of beneficial use and quantification of that beneficial use were necessary in order to successfully establish that the water rights had been adversely possessed.

Background

Both Archuleta and Gomez claimed water rights in three irrigation ditches, which were originally obtained by Archuleta's grandfather. Id. at 337. In 1962, a deed for the land from Archuleta's grandfather to Gomez gave Gomez a portion of Archuleta's water rights in the irrigation ditches. Id. at 338. The three irrigation ditches ran across Gomez's property before running onto Archuleta's property. Id.

Gomez, since 1968, had prevented water from flowing to Archuleta's property from all three ditches. Id. at 339. One ditch was plowed up and the water put into a sealed-off pipe. Id. The second was also bypassed to stop flow to Archuleta's property. Id. The third ditch was only existent on a portion of Gomez's property, and no longer continued down to Archuleta's property as it originally had. Id. Gomez testified that Archuleta's property could be sub-irrigated by the tail water flow from Gomez's property, and might not require the use of the irrigation ditches to continue to make beneficial use of the water. Id.

Archuleta sought an injunction against Gomez in the water court seeking the restoration of the three irrigation districts and delivery of water. Id. at 337. Gomez argued against the injunction, claiming that he was the actual owner of the water rights through adverse possession. Id. at 339. The water court dismissed the motion for an injunction and ruled that Gomez was the owner of the water rights by adverse possession. Id. at 336. Because Archuleta's claim for an injunction was frivolous, the water court also awarded attorney's fees to Gomez. Id. This appeal followed.

Arguments

Archuleta argued "that Gomez ha[d] not satisfied his burden of proof to demonstrate the first element of adverse possession in a water case: actual beneficial use of another person's water adjudicated right, exclusively, hostilely, and adversely to the owner." Id. at 336. Archuleta also argued that Gomez needed to quantify the beneficial use of the water claimed. Id. at 339-40.

Analysis and Holdings

Examining the state constitution, state statutes, and prior precedent, the court determined that Colorado's adverse possession statute allowed for the adverse possession of ditch rights-of-way and water rights. Id. at 342. Both are real property rights, and owners "must remain vigilant in the protection of their interests." Id. The court also found that state law did not allow for adverse possession claims against water or water rights owned by the state. Id. After reviewing prior decisions, the court stated the applicable rule: A party may not adversely possess water from a stream because a water right does not represent actual ownership of any part of the public's water in the stream, but only the right to claim and divert at the headgate of the diversion works the amount of water actually needed for beneficial use, up to the volume of the adjudicated priority. Id.

Turning to the issue of beneficial use, the court found beneficial use to be a fundamental aspect of the state's water law. Id. "[A] water use right adjudicated for the purpose of recognizing its priority is a valuable property right that a public or private person or entity can obtain by making an actual beneficial use of a portion of the public's unappropriated water resource." Id. According to prior precedent, "the basis, measure, and extent of a Colorado appropriative water right turns upon its actual beneficial use." Id. at 343.

Next, the court considered the property interest at issue to determine what actions by Gomez would be required to claim adverse possession. Id. Achuleta's property interest consisted of adjudicated irrigation water rights. Id. Looking at precedent, the court repeated "the longstanding doctrine that water rights decreed for irrigation are limited to the 'duty of water.'" Id. Duty of water is a "principle of beneficial use [that] recognizes that any given acreage of cropland needs and is limited to a productive amount of water." Id. Typically, the duty of water is "demonstrated by proof addressing a number of factors centering on the crops that have been grown on the land actually irrigated." Id. at 344.

Finally, the court discussed the fact that Gomez could not adversely possess an abandoned water right. Id. "If the right has been abandoned, the water belonging to it for beneficial use reverts to the stream, and the right cannot be revived through adverse possession." Id. Gomez could rebut a presumption of abandonment by showing that he continually used Archuleta's interest in the adjudicated irrigated water rights. Id.

The court found that actual beneficial use was an element of an adverse possession of an irrigation water rights case. Id. at 346. The burden was on Gomez to show the amount of water he had put to a beneficial use. Id. "Quantification proof is essential because the effect of a successful adverse possession claim is to transfer, in whole or in part, the ownership of the irrigation water right's beneficial consumptive use entitlement, under its adjudicated priority, from the deeded owner to the adverse claimant." Id. Any right not used by Gomez or Archuleta would be presumed to have returned to the stream. Id.

Applying the findings of the court to the facts, the record of the water court was unclear as to whether a portion of Archuleta's water rights had been abandoned to the stream, whether Gomez had adversely possessed a portion, or whether a portion belonged to Archuleta. Id. The court found that both parties needed to demonstrate that adjudicated irrigation water rights had not been abandoned. Id. Archuleta could not compel restoration of rights that had been abandoned, and Gomez could not possess rights that he himself had abandoned. Id.

Gomez had not demonstrated actual beneficial use of the water rights on his land to the exclusion of Archuleta. Id. "Without evidence of actual beneficial use of the water rights, Gomez ha[d] not shown 'actual' use of the water rights as required to sustain a claim for adverse possession." Id. at 346-47. The record of the water court showed no evidence that Gomez had put the water to beneficial use; it only showed that he had intercepted the water. Id. at 347.

Interception of the water is not sufficient to prove the use element of adverse possession in a water case. The adverse claimant's use must be adverse, hostile, exclusive, and the claimant must actually beneficially consume all, or a specified portion, of the deeded owner's historical beneficial consumptive use entitlement for the irrigation water right during the statutory period, in order to deprive the deeded owner permanently of deeded interests in the right.
Id.

Evidence that showed that Archuleta may have been able to beneficially use some of the water through sub-irrigation also did not help Gomez's claim that he was beneficially using all of Archuleta's adjudicated irrigation water rights to Archuleta's exclusion. Id.

Finally, the court explained that quantification of the right claimed through adverse possession was necessary. Id. According to prior precedent, the court must determine the extent of actual occupancy through adverse possession through quantification in these types of cases. Id. "In this adverse water use case, a showing of the actual beneficial consumptive use that Gomez made of Archuleta's water rights for irrigation during the 18-year statutory period requires quantification, in acre feet, of the amount of Archuleta's water that Gomez beneficially used." Id.

The court remanded the case back to the water court. Id. at 349. On remand, the water court was directed to allow evidence to determine the extent of Archuleta's rights held by Gomez and Archuleta and whether any of the rights had been abandoned back to the stream. Id. at 348-49.

Dissent

A dissent by Justice Martinez expressed the view that the majority was creating a new legal principle, and that this case was not the appropriate place to announce it. Id. at 349. The requirement "that beneficial use of a specific quantity of water is an element of an adverse possession claim was not directly raised at trial, and [was] not necessary to resolution of the issues before this court." Id. Justice Martinez also saw the majority's quantification requirement as a new requirement to adverse possession claims. Id. at 349-50.

In Justice Martinez's mind, the water court had more than enough evidence to determine that Gomez's usage of the water was more credible than Archuleta's usage. Id. at 349. The water court determined that Gomez was using all of Archuleta's adjudicated irrigation water rights. Id. at 350. "Therefore, the evidence that Gomez was using all of Archuleta's deeded water rights for irrigation is sufficient to support the water court's conclusion that Gomez satisfied the elements of adverse possession even given the beneficial use and precise quantification requirements articulated by the majority." Id. For those reasons, Justice Martinez would have affirmed the decision of the water court. Id.

The case was decided on January 20, 2009.