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Water Rights- use em or lose em

by Carla J. Dolce

    Mostly everyone has heard about adverse possession where someone acquires ownership of  another person′s property by blatantly and openly taking exclusive possession of the other person′s property with the intent to keep it.  The legal owner has 18 years to evict the intruder.  Otherwise, the intruder can claim ownership through adverse possession.

    Did you know the same thing can happen to water rights?  Ralph Archuleta of Gardner knows.  He′s been in court battling for his water rights for the past six years.  According to Archuleta′s complaint filed in District Court in January 2003, his neighbor Ted Gomez interfered with his water rights by plowing under one of the ditches that transports water to his property, leaving him out of rotation agreements, physically turning off the water while he was trying to irrigate his fields and other unneighborly acts.

    Both Archuleta and Gomez have deeds for fractional shares of water rights in Manzanares Ditch No. 1, Manzanares Ditch No. 2, and Archuleta Ditch located in Huerfano County and having as their source of water the Huerfano River.  Both trace their water rights to the same source:  Archuleta′s grandfather Sabino Archuleta.

    Round one was fought in the district court where Judge Appel found, in September 2004, that any use Archuleta made of his water rights was “too little too late and long after the 18 year statute of limitations…”  Basically, use it or lose it!

    While no one disputes that the law puts you in jeopardy of losing water rights if you don′t use them, there′s room for dispute over what constitutes “use.”  Archuleta took this and other issues to the Colorado Court of Appeals.  The court of appeals probably surprised a few people – especially Archuleta and Gomez′s attorneys – when it concluded the case was brought in the wrong court in the first place.  The court vacated the water rights part of Judge Appel′s decision and said the case should have been filed in the water court.

    Archuleta proceeded in the District Court Water Division 2 in Huerfano County where Judge Dennis Maes came to the same conclusion as Judge Appel:   Archuleta didn′t make use of his water rights and therefore lost them to Gomez.  Not one to give up, Archuleta took the battle to the Colorado Supreme Court.

    This seemingly minor dispute in Huerfano County over a small amount of water got the Colorado Supreme Court′s attention.  In its opinion issued on January 20, 2009, the court noted that the issues raised by the parties “are highly significant to the water law.”  The issues were important enough for a thorough analysis resulting in the court reversing Judge Maes′ decision and sending the case back for more evidence.  The court found that Gomez failed to prove his claim for adverse possession because he didn′t have enough evidence of “actual beneficial consumptive use” of Archuleta’s water including evidence of the quantity of water used.  Just showing that he “intercepted water in the three ditches belonging to Archuleta’s deeded interests” was not enough.

    Sounds like a win for Archuleta.  Read on!  To get an injunction against Gomez ordering him to restore ditch rights, Archuleta would have to produce evidence that he didn′t abandon his water rights, which can happen with 10 years of no use accompanied by an apparent intent to abandon.  If Archuleta′s water rights were abandoned before Gomez could get adverse possession, those rights would have reverted to the Huerfano River to the benefit of other water rights holders in order of their adjudicated priorities.  Abandoned water rights cannot be adversely possessed.

    Four court decisions and a lot of attorney′s fees later and the water dispute between Ralph Archuleta and Ted Gomez is basically back to square one – back in the water court where they have to come up with sufficient evidence to prove their respective claims.  Stay tuned!

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