Water Department Denies Forfeiture Claim

Abstract

In 1961, Joann Russell‐Smith and her late husband acquired water rights for domestic use of two residences. They resided in one property and rented the other. The rental unit was subsequently destroyed by a fire in 1977. The certificate authorized diversion of water from an unnamed spring and identified with particularity the point of diversion (POD) from which the owner of the water right would be authorized to take water. In 1978, Russell‐Smith sold a portion of lot five to the Moores, retaining an easement for her water line. The Moores, who lived in a trailer, dug a hole in the stream bed and appropriated water using a hose. That property was then sold to the Bangs, who continued to use water from the same hole. The other lot went through several owners, including the current owner, S. Jeanette Stookey, who filed documents seeking to cancel a portion of the 1961 water right for nonuse. The Bangs protested. The Water Resources Department denied the forfeiture claim. The appellate court said that the state forfeiture statute speaks exclusively of “use” and “beneficial use,” without reference to the “point of diversion.” Furthermore, the court said that no law refers to forfeiture as a consequence of unauthorized changes in POD. Accordingly, the court concluded that if a certificate holder makes an unauthorized change of POD but continues to use water from the designated source in the designated amount and for the designated use, there is no “failure to use” within the meaning of the state forfeiture law. The court affirmed the decision of the Water Resources Department.