JUDICIAL DEVELOPMENTS

March 2009

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Colorado Supreme Court Imposes New Quantification Requirement for the Adverse Possession of Water Rights
Archuleta v. Gomez

In this case, the Colorado Supreme Court imposed a new condition on adverse possession of water rights: that the claimant quantify the actual historic beneficial consumptive use of the claimed water right. This dispute concerned ditch easement rights and ownership of water rights. The Colorado Supreme Court reversed the Division 2 Water Court’s ruling that the defendant, Theodore Gomez, adversely possessed plaintiff Ralph Archuleta’s water rights and thereby extinguished Archuleta’s ditch easements over Gomez’s property. The Water Court concluded that neither party met their burden of proof and remanded the case for factual findings on historic beneficial use imposing a new requirement for adverse possession claimants. In Colorado, a water right owner has a right to a ditch easement across the land of another, if necessary, to convey water. On remand, Archuleta must show historic use to avoid abandonment of his water right and right to an easement. For adverse possession, Gomez must show actual beneficial use of Archuleta’s water rights over and above use of his own water rights. On remand, the Water Court must now quantify the historic beneficial use amounts and determine how much, if any, has been adversely possessed by Gomez and how much has been abandoned and/or retained by Archuleta.