Water Right Lost For Non-Use – Kansas

August 29, 2008 | Roger McEowen

 

In many of the states west of the Mississippi River, water is owned by the state and a landowner must receive a permit from the state before water can be used for agricultural or other beneficial purposes.  That permit typically sets limits on the amount of water that can be used and may limit the point of diversion of the water.  In addition, water laws in these states may also specify that if the right to appropriate water is not used for a statutorily prescribed amount of time, the holder of the right can lose the water right.  That was the issue presented in this case.

Here, a landowner received a water right in 1982.  The landowner sold his property, including the water right, to the plaintiff in 2002.  In early 2003, the plaintiff received notice from the state (Department of Agriculture, Division of Water Resources) that the water right had not been used for three years.  The plaintiff talked with the prior landowner who then submitted a water use statement to the defendant.  The next year, the plaintiff was again notified that no beneficial use of water had been made and that the water right would terminate if the period of nonuse reached five years.  The defendant asked the plaintiff to provide reasons for nonuse.  The plaintiff explained that health problems had prevented the plaintiff from using the water.  Several months later the defendant notified the plaintiff that the defendant was preparing to declare the water right as having been abandoned and gave the plaintiff the chance to provide additional information as to why the water right should not be terminated.  The plaintiff didn’t provide any new evidence.  The defendant then prepared a report which was then delivered to the plaintiff in late 2004 which stated that the water right had not been used from 1985 through 2003.  The defendant also gave the plaintiff notice of a hearing to determine if the water right had been abandoned.  The hearing was held in early 2005, and in early 2006, the defendant declared the water right abandoned and terminated. 

The plaintiff petitioned for administrative review, which the defendant denied.  The plaintiff’s motion to set aside the denial was also denied.  The plaintiff then filed for judicial review, arguing that the water right was a real property right that can’t be forfeited unless the defendant proves every element of forfeiture, and that the defendant committed procedural errors and misapplied the law in terminating the water right.  However, the trial court ruled against the plaintiff, noting that the plaintiff was provided due process, the termination of the water right was supported by substantial evidence and that the plaintiff did not meet its burden of proof to refute the defendant’s report.  The plaintiff appealed.

On appeal, the court noted that water is owned by the state and that the state had established a statutory scheme for appropriation of water and how a water right can be forfeited.  The court determined that the defendant had followed the statutory procedures for terminating the plaintiff’s water right and that the plaintiff’s due process rights had not been violated.  The court also ruled that the plaintiff bore the burden of proof to show lawful and beneficial use of the water, or due and sufficient cause for nonuse, which the plaintiff had failed to do.  Accordingly, the plaintiff’s water right was properly terminated.  Frick Farm Properties, L.P. v. State, No. 98,750, 2008 Kan. App. LEXIS 124 (Kan. Ct. App. Aug. 22, 2008).