## Facts

- A 1910 general stream adjudication decree for the East Branch of Mud Creek awarded Rencken’s predecessor an appropriative right of 0.18 cfs (priority 1888) to irrigate 10 acres in Umatilla County during March–October, with additional domestic stock use.
- ORS 540.610(1) provided that beneficial use is the basis, measure, and limit of water rights and that if an owner of a perfected water right ceases or fails to use the appropriated water for five successive years, the right ceases and nonuse is conclusively presumed to be abandonment.
- The Water Resources Director initiated forfeiture proceedings alleging nonuse.
- Evidence indicated that in 1979–1982 Rencken did not irrigate the full 10 acres and used water only for about 0.1 acre (a garden).
- In 1983 Rencken built a small pond and installed pumping/irrigation equipment aimed at irrigating the full tract, but the Director found water was not applied to the 10 acres until after the irrigation season ended (after October 31).
- The Director cancelled the right except for the portion associated with the 0.1-acre garden.
- The Court of Appeals affirmed without opinion; the Oregon Supreme Court granted review.

## Issues

1. Under ORS 540.610(1), what constitutes a “failure to use the water appropriated” for “five successive years” for a decreed irrigation right with a defined season?
2. Whether partial beneficial use during the five-year period prevents forfeiture of the entire right or permits partial forfeiture of the unused portion.
3. How the Director must evaluate evidence of use and nonuse, including seasonality and the extent of beneficial use, when determining forfeiture.

## Decision

- The Oregon Supreme Court did not finally decide whether the irrigation right (beyond the 0.1 acre) was forfeited.
- The Court construed ORS 540.610(1) to operate as a statutory forfeiture mechanism triggered by five successive years of nonuse, making subjective intent to abandon irrelevant.
- The Court recognized that forfeiture may be partial when only part of the decreed right has been beneficially used and the remainder has not been used for the statutory period.
- The Court remanded to the Water Resources Director to reevaluate the evidence and determine whether, and to what extent, the right was lost under the Court’s statutory construction.

## Legal Principles

- Beneficial use is the basis, measure, and limit of an Oregon water right; the enforceable scope of a right is tied to beneficial use actually made.
- ORS 540.610(1) establishes a strict forfeiture rule: upon proof of five successive years of nonuse of the appropriated water, forfeiture follows by conclusive presumption, without inquiry into intent.
- A decreed water right may be partially forfeited when only a portion has been beneficially used and the remainder has not been used for five successive years.
- In applying ORS 540.610(1), the fact-finder must assess actual use during the relevant years, including whether use occurred within the decreed season and the extent of land or quantity actually irrigated.

## Conclusion

The court held that ORS 540.610(1) imposes forfeiture based on proven five-year nonuse and can support partial forfeiture tied to beneficial use, then remanded for the agency to reassess the record and decide what portion, if any, of the decreed right was preserved.


Rencken v. Young, 711 P.2d 954 (Or. 1985)