The Colorado Supreme Court issued its opinion in Concerning the Revised Abandonment List of Water Rights in Water Division 2 and Concerning the Protest of Thorsteinson in Pueblo County: Harrison v. Simpson, State Engineer; Concerning the Application for Change of Water Right of Harrison, Personal Representative: Harrison v. St. Charles Mesa Water District on May 14, 2012.
Water Law—Change of Diversion Point—Stipulation—Unconstitutional Taking—Abandonment of Right.
John Harrison appealed directly to the Supreme Court from adverse rulings of the Water Court for Water Division No. 2 in two separate cases. With regard to Harrison’s Application for a Change of Water Right, the water court granted the State Engineers’ motion to dismiss at the close of Harrison’s case. The water court found that he was required, but failed, to establish the historic use of the right, to which he sought a change in the point of diversion. With regard to Harrison’s protest to the inclusion of the interests he claimed in the Mexican Ditch on the Division Engineer’s decennial abandonment list, the water court granted the Engineer’s motion for abandonment, as a stipulated remedy for Harrison’s failure to succeed in his change application.
The Court affirmed the water court’s dismissal of Harrison’s application, holding that (1) Harrison neither proved historic use of the right for which he sought a change nor was excepted from the requirement that he do so as a precondition of changing its point of diversion, and (2) denying a change of water right for failing to prove the historic use of the right does not amount to an unconstitutional taking of property. The Court reversed the water court’s order granting the Engineers’ motion for abandonment, because Harrison did not stipulate to an order of abandonment as the consequence of failing to succeed in his change application, but only as the consequence of failing to timely file an application reflecting historic use, a condition with which he complied.
Summary and full case available here.
Colorado Supreme Court: Denying Change of Water Right for Failing to Prove Historic Use Does Not Amount to Unconstitutional Taking of Property