The two ways a water right dies

Water rights on a listing are usually described as though they were title: you have them or you do not. Two mechanisms in Colorado law make that wrong, and both run on the court record rather than on the deed.

Conditional rights and diligence

A conditional right is a place in line held for a project that has not yet diverted water. It is real, it is decreed, and it keeps its date. It also has to be defended: the owner must return to the water court on a schedule and show that work is still being done toward putting the water to use.

The owner of a conditional water right must file an application for a finding of reasonable diligence every six years, and a failure to file operates as an abandonment of the conditional right.

C.R.S. 37-92-301(4)

The consequence of missing the filing is not a warning or a fine. The right ends, and with it the date that made it worth anything. Several hundred rights in the state carry a record of exactly that having happened. For any conditional right on a listing there are therefore two questions with hard answers in the record: when was diligence last found, and when is the next application due.

And this is where a report has to be careful about what it is looking at. A last diligence finding more than six years old is NOT proof the right is dead. It may mean the application was filed and the resume naming it has not been parsed into the record we read; it may mean the right went absolute and left the diligence cycle entirely. So the finding raises the deadline and names the case number, and it does not pronounce. A due diligence report that confidently kills live rights is worse than one that says nothing.

Absolute rights and non-use

An absolute right is not on a clock, but it can be abandoned by a sustained intent not to use it, and long non-use is the evidence that intent is inferred from. The division engineer publishes a decennial abandonment list naming structures proposed for abandonment; an owner who does not object within the statutory window is bound by the result.

A structure appearing on that list is not a verdict, and plenty of owners protest and win. It is, however, a document that exists, that a buyer should read, and that a seller has no obligation to mention.

Reading the resumes

Everything filed in a Colorado water court appears in a monthly resume: the application, the case number, the structure, and a legal description of where the water is taken. They are published as prose, they are not consistent between divisions or across decades, and they are the only place some of this is written down.

That prose is where a lot of the work is. A resume may write a section list as "Sec. 14, 15 & 22", or glue the marker to the number, or abbreviate the township in four different ways in one paragraph. Parsing it loosely under-reads real filings; parsing it strictly attaches a filing to the wrong ground. The parser here was rebuilt against the corpus rather than against a specification, and its recall is tested case by case, because a filing missed is a filing the report says does not exist.

What the report does with this

• Conditional rights on the section, when diligence was last found, and when the next application is due
• Where a diligence deadline has passed without a filing appearing in the record, stated as a question and not as a death
• Water court cases filed against structures on this ground, by case number, with the resume they came from
• Whether a structure here has appeared on a decennial abandonment list
• Substitute water supply plans pending on this ground, which are the filings that come before a case

Every item links back to the case it came from, because "the record shows nothing" and "we did not look" are not the same statement and the report keeps them apart.

This is general information about Colorado law and records. It is not legal advice and not a title opinion. What applies to a particular piece of ground is settled by the documents filed against it.