Wolfe v. Jim Hutton Educational FoundationAnnotate this Case
The Tip Jackwater right was originally decreed to service the Tip Jack Ditch, which is part of a 4,000-acre ranch now owned and operated by the Jim Hutton Educational Foundation. The State and Division 1 Engineers added the Tip Jack water right to the 2010 Revised Decennial Abandonment List for Water Division One because they found that the Foundation had abandoned the right. The Foundation challenged the listing. After trial, the water court concluded that the Engineers had not established by a preponderance that Jim Hutton or the Foundation had failed to use the Tip Jack water right, and even if they had, the Foundation had rebutted the presumption of abandonment. The Engineers appealed. The issue this case presented on appeal for the Supreme Court's review was one of first impression: how the presumption of abandonment applied when the water right holder continued to put decreed water to the use for which it was decreed, but nevertheless failed to divert water from the decreed diversion point for a period of ten years or more. The Supreme Court held that hold that when the Engineers prove that the water right holder has not used the decreed point of diversion for ten years or more, the Engineers trigger the rebuttable presumption of abandonment under C.R.S. section 37-92-402(11).Once triggered, the burden shifts to the water right holder to demonstrate a lack of intent to abandon. Because the water court erroneously believed that proof of nonuse at the decreed point of diversion was insufficient to raise the presumption, it failed to require evidence excusing such nonuse in order to rebut the presumption. The Court therefore reverse the water court’s judgment and remand for reconsideration of whether the Foundation met its burden of rebutting the presumption of abandonment.