Nazarenus Stack & Wombacher
NSWResources (14).png

Water Rights Resources

Water law is complex, nuanced, and can be difficult to understand. We delve into common water law concepts and provide tutorials that describe how it use publicly available tools to learn more about water rights. To this end, below are a series of articles that are designed to help parties develop a general understanding of some of the basic principles of water law. The information provided below is for educational purposes only and if you have specific questions about your water rights, please contact the attorneys at Nazarenus Stack & Wombacher for legal advice. Use of this information is explicitly subject the website disclaimer available at this link https://www.nswlaw.com/disclaimer

Adverse Possession of Water Rights

Adverse possession is a controversial legal principle that is sometimes referred to as “squatters rights.”  It creates a way for a party who uses the property of another for an extended period of time to acquire legal ownership of that property.  In Colorado, adverse possession applies to water rights, although it can be very difficult to prove. 

“[A] party seeking to establish ownership of another person’s water right by adverse possession has the burden of establishing that such possession is actual, adverse, hostile, and under a claim of right, as well as open, notorious, exclusive, and continued for the prescribed statutory period.”   Archuleta v. Gomez, 200 P.3d 333, 342 (Colo. 2009).   In Colorado, the adverse possession period is 18 years.  C.R.S. § 38-41-101.

There are crucial sideboards as to the type of water and against whom adverse possession may be raised.  For example, a party cannot adversely possess a water right that is dedicated to or owned by “the state of Colorado, or any county, city and county, city, irrigation district, public, municipal, or quasi-municipal corporation, or any department or agency thereof.”  C.R.S. § 38-41-101(2).  Because all unappropriated water is property of the state of Colorado, this limitation precludes one from adversely possessing unappropriated water that is part of a natural stream.  Likewise, a party cannot adversely possess a water right that was abandoned by the prior owner.

It is also important to note that for one to adversely possess a water right they must show not only that they diverted someone else’s water right, but also that they beneficially used the water.  The Colorado Supreme Court summarized the requirement as follows:

Because actual beneficial use is the basis, measure, and extent of an appropriative water right for irrigation in Colorado, an adverse possession claimant to an irrigation water right has the burden to establish, by a preponderance of the evidence, the amount of water expressed in acre feet belonging to the deeded owner’s water right that the adverse claimant has placed to beneficial consumptive use.  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. Archuleta, 200 P.3d at 346.

If you have questions about the adverse possession of water rights, please contact the attorneys at Nazarenus Stack & Wombacher LLC.

William Wombacher