Use as measure of water right
- forfeiture for nonuse
- confirmation of rights of municipalities
Source:
Section 540.610 — Use as measure of water right; forfeiture for nonuse; confirmation of rights of municipalities, https://www.oregonlegislature.gov/bills_laws/ors/ors540.html.
Notes of Decisions
Water certificate holder who used water only to wet some of her land to assist with plowing did not “irrigate” her land and this was not sufficient “beneficial use” to prevent forfeiture of water right for nonuse. Hennings v. Water Resources Dept., 50 Or App 121, 622 P2d 333 (1981)
Where water rights certificate authorized use of 40 cubic feet of water per second for power generation purposes, but for more than five consecutive years flow in creek at mill’s diversion point was only 22 cubic feet per second, there was evidence to support finding of Director of Water Resources Department that there had been forfeiture of 15.6 cubic feet per second. Crandall v. Water Resources Department, 290 Or 771, 626 P2d 877 (1981)
Proof that during period of five successive years an average of only 22 cubic feet per second of water was available for use by flour mill having capacity of 24.4 cubic feet per second was not proof that mill never used 24.4 cubic feet per second, so there was no proof that five year period of nonuse necessary for cancellation of water right under this section had run. Crandall v. Water Resources Dept., 290 Or 771, 626 P2d 877 (1981)
Under this section, proponents of cancellation of water rights have burden to prove by reliable and substantial evidence that holder of water right failed to use appropriated water for period of five successive years. Rencken v. Young, 300 Or 352, 711 P2d 954 (1985)
This section is a forfeiture statute and no intent to abandon water right is required. Rencken v. Young, 300 Or 352, 711 P2d 954 (1985)
Where water is drawn from designated source, in designated amount and for beneficial use, unauthorized change in point of diversion does not constitute failure to use water. Russell-Smith v. Water Resources Dept., 152 Or App 88, 952 P2d 104 (1998), Sup Ct review denied
Requirement for continuity of beneficial use applies for periods preceding perfection of water right. Hale v. Water Resources Dept., 184 Or App 36, 55 P3d 497 (2002)
Use of water on land other than land specified in water right certificate constitutes nonuse for purpose of forfeiture. Hannigan v. Hinton, 195 Or App 345, 97 P3d 1256 (2004)
Law Review Citations
28 EL 919, 1137 (1998); 36 EL 1383 (2006)
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