## Facts

- The dispute concerned the Derry Ditch No. 1 water right, a senior irrigation right (appropriation 1879; adjudication 1904) decreed for 4 cfs to irrigate 200 acres on the Hallenbeck Ranch in Lake County, Colorado.
- A prior owner acquired the ranch and right in 1972 and later encountered significant physical and economic barriers to delivering water through the ditch, including seepage and costly repair or lining needs.
- The right was not applied to beneficial use for roughly 30 years.
- Lake County purchased the ranch and associated water rights in 1998.
- Evidence was presented that the prior owner and Lake County engaged in conduct inconsistent with intent to abandon, including ditch maintenance, periodic diversion attempts, leasing, pursuing water-court filings to protect the right, and efforts to sell the right.
- A key factual dispute was whether the prior owner’s decision not to line the ditch demonstrated intent to abandon or reflected economic impracticability.

## Issues

1. Whether approximately thirty years of nonuse, standing alone, required a finding that the water right was abandoned.
2. Whether the decision not to line the ditch constituted affirmative proof of intent to abandon.
3. What level of appellate deference applies to a water court’s factual finding of non-abandonment when prolonged nonuse is shown.

## Decision

- The Colorado Supreme Court affirmed the water court’s judgment that the Derry Ditch No. 1 right was not abandoned.
- The Court held that prolonged nonuse created a rebuttable presumption of abandonment, but the record contained sufficient objective evidence to rebut any inference of intent to abandon.
- The Court rejected the claim that failing to line the ditch was conclusive evidence of abandonment, treating it as a fact the water court could reasonably attribute to economic and practical constraints.
- Applying a deferential standard of review, the Court declined to reweigh evidence and upheld the water court because the record was not wholly insufficient to support its finding.

## Legal Principles

- Abandonment of a Colorado water right requires both nonuse and intent to abandon; intent is inferred from objective conduct.
- Prolonged nonuse may create a rebuttable presumption of abandonment, which may be overcome by evidence showing continuing intent to use, protect, or realize value from the right.
- Abandonment determinations are factual and committed to the water court’s discretion; an appellate court will not overturn the finding unless the evidence is wholly insufficient to support it.
- Economic or physical impediments to full use may explain nonuse and, combined with affirmative protective actions, can support a finding of no intent to abandon.

## Conclusion

The Court held that although decades of nonuse triggered a presumption of abandonment, the water court reasonably found the presumption rebutted by sustained efforts to maintain, protect, and exploit the right, and the appellate court affirmed under a highly deferential review standard.


East Twin Lakes Ditches & Water Works, Inc. v. Bd. of Cnty. Comm’rs, 76 P.3d 918 (Colo. 2003)