Parsons v. Fort Morgan Reservoir & Irrigation Co.

Mr. Justice Gabbert delivered the opinion of the court: The burden was upon the plaintiffs to establish abandonment, and in order to sustain a finding that a water right has been abandoned the testimony bearing on the subject should be clear and convincing. Abandonment consists of the two elements, act and intention, and non151 use alone of the water represented by decreed priorities, at least short of the period of the statute of limitations, is not sufficient to establish abandonment, hut non-use continued for a considerable length of time, coupled with other acts of a character tending to show an intention on the part of the owner not to resume or repossess himself of the water represented by priorities which he has ceased to use may constitute an abandonment. Alamosa Creek C. Co. v. Nelson, 42 Colo. 140; 93 Pac. 1112; White v. Nuckols, 49 Colo. 170, 112 Pac. 329; Green Valley Ditch Co. v. Frantz, 54 Colo. 226, 129 Pac. 1006; San Luis Valley I. District v. Town of Alamosa, 135 Pac. 769; O’Brien v. King, 41 Colo. 487, 92 Pac. 945; Beaver Brook R. & C. Co. v. St. Vrain R. & F. Co., 6 Colo. App. 130, 40 Pac. 1066; New Mercer Ditch Co. v. Armstrong, 21 Colo. 357, 40 Pac. 989; Putnam v. Curtis, 7 Colo. App. 437, 43 Pac. 1056; Hall v. Lincoln, 10 Colo. App. 360, 50 Pac. 1047; Sieber v. Frink, 7 Colo. 148, 2 Pac. 901; Platte Valley I. Co. v. Central Trust Co., 32 Colo. 102, 75 Pac. 391. The question necessary to determine is whether the evidence sustains the judgment when tested by these rules. The testimony unquestionably establishes that the Parsons ditch was abandoned in 1898, and probably as early as 1895 or 1896. No use of the priorities awarded the ditch was made through that channel after 1898, and from the testimony the trial court may well have concluded that the use of water through that ditch ceased in 1895 or 1896. In 1900 or the year following Parsons started to construct the Parsons and Bechtolt ditch, but water was never diverted through it and it was abandoned. In 1902 More advanced some money to assist in paying expenses connected with litigation between ditches in Morgan and Logan counties, hut this advance was on his own account as pledgee of the Parsons ditch stock. In 1901, 1902 and 1903 he granted permission, so far as he had any authority, to run the first priority of [152] the Parsons ditch through the Platte and Beaver ditch; but there was no consideration for this use. Parsons diverted some of the Parsons priorities through the Trowell ditch in 1905,1906 and 1907, but in circumstances from which it is apparent that these diversions were a mere pretense to establish a use of water which he did not need, as he was taking water from another source. A use of water, in order to prevent an abandonment, must be in good faith: besides from the testimony* it appears that before he commenced this use the water had not been used for at least seven years, and possibly not for ten. The Parson ditch had been abandoned during all this period and meetings of the stockholders had not been held for several years. From these circumstances it could be inferred that an abandonment had taken place before the attempt to use the water in 1905. If this were true then the use in 1905 would not revive rights which had been lost by abandonment. The same can be said of the efforts of Stratton in 1909, and besides it does not appear that the Parsons priorities were to be used beneficially through either the Platte and Beaver or the Snyder ditches. In 1895 the greater portion of the Parsons land was sold under a deed of trust, and about 1909 the plaintiff in error, Parsons, disposed of his land. In brief, the testimony bearing on the subject of abandonment, where there is any conflict, is sufficient to sustain the finding that the priorities involved were abandoned, and where there is no conflict, is of a character from which the conclusion can be deduced that the acts upon which the claim of non-abandonment was predicated were not in good faith, and were but pretences to evince an intention,which in fact was not entertained. In these circumstances we are not justified in reversing the findings of fact upon which the trial court [153] based its judgment. Tbe judgment of the district court is affirmed. Judgment affirmed. Chief Justice Musseb and Mr. Justice Bailey concur.