How Good is an Old Water Right? The Application of Statutory Forfeiture Provisions to Pre-Code Water Rights
University of Denver Water Law Review, Vol. 4, No. 1, p. 1 (2000)
28 Pages Posted: 12 Oct 2009 Last revised: 4 May 2014
Date Written: 2000
This Article reconsiders the value of age as a component of western water rights. In the arid west, many water rights are old enough to pre-date the various states' comprehensive water laws. Under the western doctrine of prior appropriation, older water rights enjoy priority over all later-acquired rights to water from the same source, thus seniority adds considerable value to property rights in water. But just how good should these oldest rights be - strong enough to be exempt from later-enacted statutory forfeiture provisions? Under pre-code water law, one could only lose a vested water right by common law abandonment, which required finding both relinquishment of the water and intent to give it up. In contrast, the water codes incorporated strict statutory forfeiture provisions under which non-use of the water for some specified - and usually short - period of time would result in the loss of the water right, without regard to intent. The water codes intended statutory forfeiture to be quick, clean, and predictable. This Article argues that senior rights, whether or not they predate a state's water code, should only be as good as their priority date and no better. Giving old rights special status by exempting them from statutory forfeiture, as a few states have tried, undermines the purposes behind codification of the prior appropriation doctrine, is contrary to the usufructuary nature of water rights, and deprives state water managers of a necessary management tool.
Keywords: water rights
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