AMENDED OPINION

This opinion is subject to revision before final publication in the Pacific Reporter

2013 UT 69

IN THE

SUPREME COURT OF THE STATE OF UTAH

DELTA CANAL CO., MELVILLE IRRIGATION CO., ABRAHAM

IRRIGATION CO., DESERET IRRIGATION CO.,

and CENTRAL UTAH WATER CO.,

Plaintiffs and Appellants,

v.

FRANK VINCENT FAMILY RANCH, LC,

Defendant and Appellee.

No. 20120470

Filed November 19, 2013

Fourth District, Fillmore Dep’t

The Honorable James M. Brady

No. 080700087

Attorneys:

John H. Mabey Jr., David C. Wright, Salt Lake City,

Richard Waddingham, Delta, for appellants

Edwin C. Barnes, Steven E. Clyde, Robert D. Andreasen,

Jonathan S. Clyde, Salt Lake City, for appellee

John E. Swallow, Att’y Gen., Norman K. Johnson,

L. Ward Wagstaff, Julie I. Valdes, for amicus curiae

JUSTICE DURHAM authored the opinion of the Court, in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE PARRISH, and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Appellants Delta Canal Company, Melville Irrigation

Company, Abraham Irrigation Company, Deseret Irrigation

Company, and Central Utah Water Company (collectively, Irrigation

Companies) and Appellee Frank Vincent Family Ranch, LC

(Vincent) are water-rights holders on the Sevier River system. The

Irrigation Companies claim that Vincent’s water right has been

partially forfeited and partially abandoned. The district court

granted summary judgment to Vincent. We reverse and remand.
DELTA v. VINCENT

Opinion of the Court

BACKGROUND

¶2 The Irrigation Companies are nonprofit Utah corporations

that distribute water to their shareholders for irrigation of

agricultural land in Millard County. They filed a complaint in 

district court alleging that Vincent’s water right had been partially

forfeited and partially abandoned.

¶3 The water right in question was awarded to the Samuel

McIntyre Investment Company (McIntyre) in 1936 during a general

adjudication of the Sevier River system.1 Leading up to the general

adjudication, the state engineer catalogued all water usage in the

Sevier River system and prepared a proposed determination of

water rights. The state engineer proposed to award McIntyre 5,000

acre feet of water annually to irrigate 1,051.5 acres of land.

¶4 The district court heard and addressed objections to the

proposed determination and then issued a final decree, referred to

as the “Cox Decree.” The Cox Decree awarded McIntyre twenty-two

cubic feet of water per second from March 1 through October 1 of

each year. This water included a storage component from April 16

to October 1, permitting McIntyre to store 90% of its allocation in the

Sevier Bridge Reservoir for future use.

¶5 Vincent purchased this water right in 1998, when it also

purchased the McIntyre farm. Vincent has used the farm and water

right to grow crops, such as corn, hay, and alfalfa, and to run a

commercial bird-hunting operation.

¶6 The Irrigation Companies allege that during the twentyyear limitations period preceding the filing of their complaint in

2008,2

 Vincent and its predecessor forfeited and abandoned a portion

of the water right. They allege that from 1988 to 1998, McIntyre

irrigated only 830 of its 1,051.5 acres, and that after 1998, Vincent

cultivated fewer than 900 of the 1,051.5 acres.

¶7 Vincent contends that it was unable to cultivate all 1,051.5

acres because in times of water shortages, the Sevier River

Commissioner reduced its diversion right. Vincent further argues

1

 See Green River Canal Co. v. Olds, 2004 UT 106, ¶¶ 3–7, 110 P.3d

666, for an overview of the general adjudication process.

2

 When the Irrigation Companies filed their complaint on May 1,

2008, Utah Code section 73-1-4(3)(c)(i) provided that forfeiture

actions must be “commenced within 15 years from the end of the

latest period of nonuse of at least five years.” Amendments to the

statute took effect on May 5, 2008. See 2008 Utah Laws 2559–60.

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Opinion of the Court

that it should not be faulted for failing to use water between March

1 and April 15 because water could not be beneficially used while

the ground was unprepared and sometimes frozen, and there was

no storage right during this period. Vincent also defends on the

grounds that it irrigated many acres of natural habitat for

commercial bird hunting.

¶8 The parties also disagree on the purely legal question of

whether partial forfeiture and partial abandonment were available

in Utah before 2002. In 2002, the legislature amended Utah Code

section 73-1-4 (the Forfeiture Statute) to clarify that partial forfeiture

was an available remedy. See 2002 Utah Laws 120. As amended, the

Forfeiture Statute provided that “the water right or the unused portion

of that water right” could be forfeited. UTAH CODE § 73-1-4(3)(a)

(subsequent to 2002 amendments) (emphasis added). Before the

amendment, the code stated only that “the water right” could be

forfeited. UTAH CODE § 73-1-4(1)(a) (prior to 2002 amendments).

¶9 The district court held that Utah law did not provide for

partial forfeiture or partial abandonment before 2002, and that

Vincent was protected from partial forfeiture and partial

abandonment after 2002 by an exception located in Utah Code

section 73-1-4(3)(f)(i) (subsequent to 2002 amendments). See 2002

Utah Laws 120. This exception stated that “[t]he provisions of this

section shall not apply . . . to those periods of time when a surface

water source fails to yield sufficient water to satisfy the water right,

or when groundwater is not available because of a sustained

drought.” The court held that because Vincent did not receive an

uninterrupted flow of twenty-two cubic feet of water per second

during any years between 2002 and the filing of the complaint, the

Irrigation Companies were “precluded from claiming either a partial

forfeiture, or a partial abandonment.” The court granted summary

judgment to Vincent, and the Irrigation Companies appealed. We

have jurisdiction under Utah Code section 78A-3-102(3)(j).

STANDARD OF REVIEW

¶10 “We review a district court’s grant of summary judgment

for correctness.” Basic Research, LLC v. Admiral Ins. Co., 2013 UT 6,

¶ 5, 297 P.3d 578 (internal quotation marks omitted).

ANALYSIS

¶11 We begin by examining the pre-2002 Forfeiture Statute in

conjunction with Utah Code section 73-1-3 (the Beneficial Use

Statute). We determine that the pre-2002 Forfeiture Statute

unambiguously permitted partial forfeiture. We next conclude that

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DELTA v. VINCENT

Opinion of the Court

the exception located in Utah Code section 73-1-4(3)(f)(i) (subsequent

to 2002 amendments) is a codification of the physical-causes

exception—not a rule that forfeiture can never occur when a water

right is not fully satisfied. We also clarify that abandonment is a

common-law cause of action that requires a showing of intent to

relinquish. Finally, we clarify the proper measure of Vincent’s water

right and address other issues likely to arise on remand.

I. PARTIAL FORFEITURE HAS ALWAYS BEEN AVAILABLE

 IN UTAH BECAUSE IT IS INHERENT IN THE PRINCIPLE

OF BENEFICIAL USE

A. Partial Forfeiture in Our Case Law

¶12 The parties dispute whether partial forfeiture was available

in Utah before 2002. Vincent argues that it was not available, relying

in part on Eskelsen v. Town of Perry, 819 P.2d 770, 775 n.9 (Utah 1991),

where we stated in dicta that “[t]he question of partial forfeiture is

not addressed in our statutes and has never been directly before this

court. . . .” But closer investigation of our case law reveals that this

court has always assumed that partial forfeiture was an available

remedy.

¶13 In 1897, we stated,

The great weight of modern authority is to the effect

that when an appropriator permits part of the water

appropriated to run to waste, or fails to use a certain

portion of it for some beneficial use or purpose, he can

only hold that part of the water which has been actually

applied to a beneficial use, and his right is limited to the

quantity so used.

Becker v. Marble Creek Irrigation Co., 49 P. 892, 893 (Utah 1897)

(emphasis added). In 1943, we heard an appeal involving an

allegation of partial forfeiture of a water right. Rocky Ford Irrigation

Co. v. Kents Lake Reservoir Co., 135 P.2d 108 (Utah 1943). We declared

that “if there were a five year continuous period during which [the

appropriator] failed to use material amounts of available water, we

should hold that a forfeiture of at least part of its right has occurred by

virtue of this nonuse.” Id. at 112 (emphasis added). We then applied

this standard to the facts of the case and determined that no

forfeiture had occurred because the appropriator had fully used its

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Opinion of the Court

water right in one relevant year and was protected by the “physical

causes” exception3

 in other years. Id. at 111–13.

¶14 More recently, in Eskelsen, we noted that “all of the policy

reasons that support forfeiture as a general principle would be

furthered by, and hindered without, partial forfeiture.” 819 P.2d at

775 n.9. Finally, in 1997, we said that “[t]he extent of anyone’s right

to use water . . . is limited to that amount which can be put to

beneficial use. Thus, the nonuse of water for five years by an

appropriator works a loss of the right to the unused water. . . .” Platt v.

Town of Torrey, 949 P.2d 325, 331–32 (Utah 1997) (emphasis added)

(citation omitted).

¶15 These cases, which span a century, show that this court

recognized and applied the doctrine of partial forfeiture long before

2002. Although we have not previously linked the doctrine of partial

forfeiture to statutory language, we have always acted on the

assumption that partial forfeiture was available. This appeal

presents us with the opportunity to situate the doctrine of partial

forfeiture within our statutes.

B. The Language of the Forfeiture Statute

¶16 “Our primary objective when interpreting statutes is to

give effect to the legislature’s intent.” State v. Harker, 2010 UT 56,

¶ 12, 240 P.3d 780 (internal quotation marks omitted). To discern

legislative intent, we begin by examining a statute’s plain language

and construing it “in harmony with other statutes in the same

chapter and related chapters.” Id. (internal quotation marks omitted).

“When viewing the act as a whole does not eliminate duplicative yet

plausible meanings, the statute is ambiguous, and we may resort to

extrinsic interpretive tools to resolve the ambiguity.” R & R Indus.

Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass'n, 2008 UT 80, ¶ 26, 199

P.3d 917 (internal quotation marks omitted).

3

 We explained the physical causes exception as follows:

“[F]orfeiture will not operate in those cases where the failure to use

is the result of physical causes beyond the control of the

appropriator such as floods which destroy his dams and ditches,

dr[o]ughts, etc., where the appropriator is ready and willing to

divert the water when it is naturally available.” Rocky Ford, 135 P.2d

at 111. See infra ¶¶ 30–32.

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Opinion of the Court

¶17 Before 2002, the Forfeiture Statute provided,4

When an appropriator or the appropriator’s successor

in interest abandons or ceases to use water for a period

of five years, the water right ceases and the water

reverts to the public, unless, before the expiration of the

five-year period, the appropriator or the appropriator’s

successor in interest files a verified application for an

extension of time with the state engineer.

UTAH CODE § 73-1-4(1)(a) (prior to 2002 amendments). The statute

referred to “water” and “the water right” without specifying

whether those terms referred to divisible amounts of an

appropriator’s entitlement. The statute could be reasonably

interpreted to mean that when an appropriator ceases to use any

portion of a water right, that portion of the water right ceases. But it

could also be reasonably interpreted to mean that only when an

appropriator ceases entirely to use water from a previous

appropriation does that right cease. Thus, when viewed in isolation,

the pre-2002 Forfeiture Statute is ambiguous.

¶18 But we do not interpret statutes in isolation; we take

interpretive guidance from related statutes. See Harker, 2010 UT 56,

¶ 12. Here, we seek insight into the legislature’s purpose for the

Forfeiture Statute in the neighboring Beneficial Use Statute, which

provides that “[b]eneficial use shall be the basis, the measure and the

limit of all rights to the use of water in this state.” UTAH CODE § 73-1-

3; see Butler v. Pinecrest Pipeline Operating Co., 2004 UT 67, ¶ 31, 98

P.3d 1 (reading the Forfeiture Statute “in conjunction with” the

Beneficial Use Statute). As we explain below, the Beneficial Use

Statute erases all ambiguity from the Forfeiture Statute and requires

us to conclude that the pre-2002 Forfeiture Statute permitted partial

forfeiture.

4

 The statute was also amended in 1996. Prior to 1996, it read:

When an appropriator or his successor in interest

abandons or ceases to use water for a period of five

years, the right ceases, unless, before the expiration of

the five-year period, the appropriator or his successor

in interest files a verified application for an extension

of time with the state engineer.

UTAH CODE § 73-1-4(1)(a) (prior to 1996 amendments). Because the

differences between the pre-1996 version and the post-1996 version

of the statute do not affect our analysis, we will for simplicity’s sake

address only the post-1996 version.

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C. Beneficial Use

¶19 In Utah and other arid western states, “a drop of water is

a drop of gold.” Carbon Canal Co. v. Sanpete Water Users Ass'n, 425

P.2d 405, 407 (Utah 1967). Western state governments are “vitally

interested in seeing that none of the [state’s] waters are allowed to

run to waste or go without being applied to a beneficial use.”

Eskelsen, 819 P.2d at 775. In all western states, the concept of

“beneficial use” has been codified, and in many states, including

Utah, it has been enshrined in the state constitution. UTAH CONST.

art. XVII, § 1 (“All existing rights to the use of any of the waters in

this State for any useful or beneficial purpose, are hereby recognized

and confirmed.”) (no change since 1896); UTAH CODE § 73-1-3

(“Beneficial use shall be the basis, the measure and the limit of all

rights to the use of water in this State.”) (no change since 1903 except

for renumbering, see 1903 Utah Laws 101); Janet C. Neuman,

Beneficial Use, Waste, and Forfeiture: The Inefficient Search for Efficiency

in Western Water Use, 28 ENVTL. L. 919, 923 (1998) (“The water codes

of all of the western states and some state constitutions include the

term ‘beneficial use.’”).

¶20 In Utah, the beneficial use principle existed at common law

prior to its codification. We held in Sigurd City v. State, 142 P.2d 154,

157 (Utah 1943) that water rights acquired before the beneficial use

principle was codified were nonetheless subject to the beneficial use

requirement because beneficial use “has always been the basis of the

right to appropriate and use waters in this state.” Indeed, even prior

to statehood, the leaders of the Church of Jesus Christ of Latter-day

Saints “conditioned the privilege of owning property, including

water, on the productive, non-speculative use of the property.” 4

WATER AND WATER RIGHTS, Part XI.B, Utah, § III(F) (Amy K. Kelley

ed., 3rd ed. 2013).

¶21 “[B]eneficial use” is not statutorily defined in many

western states, including Utah, and even in states with statutory

definitions, those definitions are often framed in general terms that

require further explanation. See, e.g., N.D. CENT. CODE § 61-04-01.1

(2013) (“‘Beneficial use’ means a use of water for a purpose

consistent with the best interests of the people of the state.”). Thus,

the concept of beneficial use has developed largely in common-law

fashion, with state courts borrowing heavily from one another’s

opinions. Neuman, supra ¶ 19, at 925. As the Ninth Circuit observed,

“on the point of what is beneficial use the law is general and without

significant dissent. . . . [U]nless it is shown that a state applies a

special rule of law on a relevant point, it is proper to apply general

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Opinion of the Court

law in defining beneficial use.” United States v. Alpine Land &

Reservoir Co., 697 F.2d 851, 854 (9th Cir. 1983) (citation omitted)

(internal quotation marks omitted).

¶22 In western water law generally, “beneficial use has two 

different components: the type of use and the amount of use.”

Neuman, supra ¶ 19, at 926. Over time, the types of use considered

to be beneficial have expanded to encompass not only economically

beneficial uses, but also uses that promote conservation, recreation,

and other values deemed to be socially desirable. 1 WATER AND

WATER RIGHTS, supra ¶ 20, at § 12.02(c)(2). In some states, legislatures

have identified uses that are per se beneficial or non-beneficial. E.g.

MONT. CODE ANN. § 85-2-102(4) (listing uses deemed to be

beneficial); OKLA. STAT. tit. 27, § 7.6 (“No Oklahoma water from any

source shall be used in connection with the transportation,

maintenance or operation of a coal slurry pipeline within or through

the State of Oklahoma.”). Some state legislatures have also specified

priorities to govern usage in times of shortages. E.g. ARIZ.REV.STAT.

ANN. § 45-157 (prioritizing water uses based on “[t]he relative values

to the public”).5

 Courts have also identified beneficial and nonbeneficial uses of water. E.g. Neubert v. Yakima-Tieton Irrigation Dist.,

814 P.2d 199, 204 (Wash. 1991)(en banc) (holding that using water to

protect crops from frost is beneficial); Burlington Ditch Reservoir &

Land Co. v. Metro Wastewater Reclamation Dist., 256 P.3d 645, 663

(Colo. 2011).

¶23 The touchstone of the second requirement of beneficial use

is reasonableness: the amount of water used must be reasonable.

Usage of water in accordance with “the general custom of the

locality” is usually reasonable, “so long as the custom does not

involve unnecessary waste.” Tulare Irrigation Dist. v. LindsayStrathmore Irrigation Dist., 45 P.2d 972, 997 (Cal. 1935). An

appropriator who diverts water in excess of the appropriator’s

“actual requirements and allow[s] the excess to go to waste

acquire[s] no right to the excess.” State Dep’t of Ecology v. Grimes, 852

P.2d 1044, 1051 (Wash. 1993)(en banc). The same is true for water

diverted in excess of reasonable requirements and used inefficiently.

“A particular use must not only be of benefit to the appropriator, but

it must also be a reasonable and economical use of the water in view

of other present and future demands upon the source of supply.” Id.

5

 Utah repealed its list of water use priorities in 2009. See 2009

Utah Laws 1343.

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¶24 In Utah, as in many other states, “our statutory and

decisional law have been fashioned in recognition of the desirability

and of the necessity of insuring . . . the most continuous beneficial

use of all available water with as little waste as possible.” Green River

Canal Co. v. Thayn, 2003 UT 50, ¶ 34, 84 P.3d 1134 (internal quotation

marks omitted); see also Little Walla Irrigation Union v. Finis Irrigation

Co., 124 P. 666, 668 modified on reh’g sub nom. Little Walla Walla

Irrigation Union v. Finis Irrigation Co., 125 P. 270 (Or. 1912) (“It is the

policy of the law that the best [irrigation] methods should be used

and no person allowed more water than is necessary.”). This court

declared over fifty years ago that “[w]asteful methods [of irrigation]

must be discontinued.” In re Water Rights of Escalante Valley Drainage

Area, 348 P.2d 679, 682 (Utah 1960). Since then, Utah’s population

has trebled, making the need for water conservation even more

pressing. See Laura Summers, Utah Foundation, Research Brief: The

Impacts of Utah’s Population Growth (Oct. 9, 2008),

http://www.utahfoundation.org/reports/?page_id=270 (providing

a population graph and discussing increasing demand for water).

Thus, all water users must “pay careful attention to the manner of

use,” and courts, when appropriate, should exercise their “power to

order improved methods of conveying, measuring and diverting

water so as to assure the greatest possible use of the natural

resource.” In re Water Rights of Escalante Valley Drainage Area, 348

P.2d at 682; see Grimes, 852 P.2d at 1051–54 (holding that an

appropriator’s water right was properly limited to allow only a onefourth conveyance loss, rather than the user’s previous “one-half to

two-thirds” conveyance loss).

¶25 These requirements of beneficial use—beneficial purpose

and reasonable amount—are ongoing requirements. Eskelsen, 819

P.2d at 775 (“An appropriative water right depends on beneficial use

for its continued validity.”); State v. Hagerman Water Right Owners,

Inc., 947 P.2d 400, 408 (Idaho 1997) (holding that applying water to

beneficial use is “a continuing obligation”); Neuman, supra ¶ 19, at

932 (“The case law is thus consistent, both over time and throughout

the West, in applying actual beneficial use as an ongoing

requirement in maintaining appropriative water rights.”). If an

appropriator ceases to beneficially use a water right, the wasted or

unused water is made available to other appropriators. In Utah, the

process for making such water available to other appropriators is

governed by the Forfeiture Statute.

D. Beneficial Use and the Forfeiture Statute

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Opinion of the Court

¶26 Vincent would have us hold that under the Forfeiture

Statute, a water right can be fully maintained through partial use.

This rule would be inconsistent with the concept of beneficial use.

See Hagerman, 947 P.2d at 407–08 (holding that the statutory

interpretation advanced by the party opposing partial forfeiture

would be inconsistent with the beneficial use policies underlying

Idaho’s forfeiture statute). As we explained in Eskelsen, the policy

underlying Utah water law is to prevent the state’s water from being

“allowed to run to waste or go without being applied to a beneficial

use for any great number of years.” 819 P.2d at 775–76 (internal

quotation marks omitted). This policy “would be furthered by, and

hindered without, partial forfeiture.” Id. at 775 n.9. Vincent’s rule

would effect the opposite result: appropriators would be able to

maintain their entire water rights while wasting or otherwise failing

to beneficially use material amounts of that water.

¶27 Under the principle that we interpret statutes in harmony

with neighboring provisions, Harker, 2010 UT 56, ¶ 12, we interpret

the Beneficial Use Statute and the Forfeiture Statute in harmony with

one another. If beneficial use is to be “the basis, the measure and the

limit” of water rights in Utah, as required by the Beneficial Use

Statute, then partial forfeiture must be available. We agree with all

the other western state courts that have addressed this question and

found that forfeiture and partial forfeiture are inherent in the very

concept of beneficial use. See, e.g., United States v. Alpine Land &

Reservoir Co., 27 F. Supp. 2d 1230, 1243 (D. Nev. 1998) (“Under the

established tenet that a beneficial use is the measure and limit of a

water right, when the necessity for the use of the water ceases to

exist or is reduced, the extent of the water right is limited to the

extent of the beneficial purpose which remains.”); Smith v. Hawkins,

52 P. 139, 140 (Cal. 1898) (“If plaintiffs could forfeit their entire right

of appropriation by nonuser, equally will they be held to forfeit less

than the whole by like failure.”); Hagerman, 947 P.2d at 407–08

(holding that partial forfeiture is available in Idaho and that a

contrary holding would be inconsistent with the principle of

beneficial use); In re Musselshell River Drainage Area, 840 P.2d 577, 579

(Mont. 1992) (“The controlling principle upon which water ‘rights’

in Montana are perfected and continue to possess legal validity is

that of beneficial use; water rights cease when the water is no longer

applied to a beneficial use.” (internal quotation marks omitted)); In

re Birdwood Irrigation Dist., 46 N.W.2d 884, 888 (Neb. 1951) (“We

conclude that the power to cancel the whole of an appropriation for

irrigation purposes for nonuser carries with it the right to cancel a

part.”).

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¶28 We hold that the only plausible reading of the Forfeiture

Statute, when viewed in conjunction with the Beneficial Use Statute,

is that a water right may be forfeited either in whole or in part.

Under pre-2002 versions of the Forfeiture Statute, a water right has

been partially forfeited if, during the statutory period, the

appropriator “failed to use material amounts of available water”

without securing an extension of time from the state engineer. Rocky

Ford, 135 P.2d at 112; UTAH CODE § 73-1-4(1)(a) (prior to 2002

amendments) (permitting an appropriator to file for an extension of

time). Accordingly, we reverse the district court’s grant of summary

judgment as to the pre-2002 partial forfeiture claim and remand for

the claim to be reconsidered in a manner consistent with this

opinion.

II. THE 2002 VERSION OF THE FORFEITURE STATUTE

PROVIDES FOR FORFEITURE OF AVAILABLE

WATER THAT IS NOT BENEFICIALLY USED

¶29 The Irrigation Companies also appeal the district court’s

interpretation of the following exemption in the post-2002 Forfeiture

Statute: “The provisions of this section shall not apply . . . to those

periods of time when a surface water source fails to yield sufficient

water to satisfy the water right, or when groundwater is not

available because of a sustained drought.” UTAH CODE § 73-1-

4(3)(f)(i) (2002). The district court interpreted this exemption to mean

that no forfeiture of any amount can occur during periods when a

water right is not fully satisfied. Although this interpretation is

reasonable when the text of the exemption is viewed in isolation, it

is unreasonable when the exemption is viewed in conjunction with

the Beneficial Use Statute.

¶30 Under the district court’s interpretation of the exemption,

a small deficit in available water could protect a water right from

forfeiture even if most of the water were actually available but not

put to beneficial use. This result is inconsistent with the Beneficial

Use Statute, under which the continuing validity of a water right

depends on its being used. See supra ¶¶ 19–25. Thus, we reject the

district court’s interpretation and hold that this exemption is a

codification the common-law physical-causes exception we applied

in Rocky Ford.

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¶31 In Rocky Ford, we explained that

the courts have uniformly held that forfeiture will not

operate in those cases where the failure to use is the

result of physical causes beyond the control of the

appropriator such as floods which destroy his dams and

ditches, dr[o]ughts, etc., where the appropriator is

ready and willing to divert the water when it is

naturally available.

Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 135 P.2d 108, 111

(Utah 1943). We then applied the physical-causes exception, holding

that no forfeiture had occurred because the years of inadequate use

were punctuated by years in which “no water whatever was

available.” Id. There was no consecutive span of five years (the

statutory forfeiture period at the time) in which the defendant failed

to use material amounts of available water. Id. at 113. Therefore,

because of the physical-causes exception, the water right was not

forfeited in whole or in part. Id.

¶32 Utah Code section 73-1-4(3)(f)(i) (2002)6 codifies the

physical-causes exception, protecting appropriators from forfeiture

insofar as they beneficially use material amounts of available water.

Even during a shortage, if an appropriator fails to beneficially use

material amounts of available water, the amount of available but

unused water may be forfeited. The district court’s contrary view

would create a safe harbor for waste and non-use during times of

shortage, which is precisely when efficiency and conservation are

most imperative. We therefore reverse the grant of summary

judgment as to the post-2002 partial-forfeiture claim and remand for

the claim to be reconsidered in a manner consistent with this

opinion.

III. ABANDONMENT OF A WATER RIGHT IS A COMMONLAW CLAIM, NOT A STATUTORY CLAIM

¶33 The Irrigation Companies also allege that Vincent

abandoned part of its water right. The district court treated the

abandonment claim as a claim under the Forfeiture Statute, which

states that forfeiture occurs when an appropriator “abandons or

ceases to use” a water right. UTAH CODE § 73-1-4(3)(a) (2002)

(emphasis added.) The district court granted Vincent summary

judgment on the abandonment claim based on Utah Code section 73-

6

 The current version of this exemption is located at Utah Code

section 73-1-4(2)(e)(iii).

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1-4(3)(f)(i) (subsequent to 2002 amendments)—the exemption that

we hold to be a codification of the physical-causes exception. See

supra ¶ 30. Summary judgment on that basis was improper for two

reasons. First, the district court erred in interpreting this exemption.

See supra ¶¶ 29–32. Second, abandonment of a water right is not a

statutory claim. Although a form of the word “abandon” has been

present in the Forfeiture Statute since it was originally promulgated

in 1903, our jurisprudence has treated abandonment as a commonlaw claim, independent of the Forfeiture Statute.

¶34 In 1943, we observed,

Abandonment is a separate and distinct concept from

that of forfeiture. . . . While upon the one hand,

abandonment is the relinquishment of the right by the

owner with the intention to forsake and desert it,

forfeiture upon the other hand, is the involuntary or

forced loss of the right, caused by the failure of the

appropriator or owner to do or perform some act

required by the statute.

Wellsville E. Field Irrigation Co. v. Lindsay Land & Livestock Co., 137

P.2d 634, 643 (Utah 1943) (internal quotation marks omitted). A few

years later, we addressed the presence of the term “abandon” in the

Forfeiture Statute:

Although the statute uses the term “abandon or cease to

use water for a period of five years,” we have

recognized that abandonment is a separate and distinct

concept from that of forfeiture in that an abandonment

requires a definite intent to relinquish the right to use

and ownership of such water right and does not require

any particular period of time, but the forfeiture herein

provided for requires that the appropriator cease to use

the water for a period of five years before it is

complete. . . . The abandonment of a water right to the

public the same as the abandonment of any other

property or right requires that a prior appropriator

intentionally release or surrender such right to the

public. To thus lose a water right does not necessarily

depend on this statute nor require nonuse of such right

for any particular length of time.

Rich County-Otter Creek Irrigation Co. v. Lamborn, 361 P.2d 407, 409

(Utah 1961) (footnote omitted). We see no reason to depart from this

long-standing precedent.

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DELTA v. VINCENT

Opinion of the Court

¶35 We reverse the grant of summary judgment on the

abandonment claim and remand for the claim to be considered

under our common-law precedents. Unlike forfeiture, abandonment

has no time element. Instead, it has an intent requirement. To

succeed in this claim, the Irrigation Companies must show that

Vincent or its predecessor intentionally relinquished a portion of the

water right. See id.

IV. PROPER MEASURE OF VINCENT’S WATER RIGHT

¶36 Water rights can be measured in several ways. A flow

allowance is the maximum rate at which water may be diverted and

can be measured in cubic feet per second or in miner’s inches

(approximately 500–700 milliliters per second). A volume allowance

is the maximum quantity of water that may be diverted during a

given irrigation season and is measured in acre feet (the amount of

water needed to cover one acre to a depth of one foot) or in cubic

feet. Water “duty” is the amount of water needed to irrigate an acre

in a given geographic region and is generally expressed in acre feet

per acre. The Utah legislature has directed courts to measure water

in cubic feet per second and in acre feet. See UTAH CODE § 73-1-2.7

¶37 Here, the authoritative description of Vincent’s water right

is found in the Cox Decree,8 issued in 1936 at the conclusion of a

general adjudication of the Sevier River system. The Cox Decree

specifies only the flow component of Vincent’s water right: twentytwo cubic feet per second (c.f.s.). As the California Supreme Court

explained in 1935, water rights are often expressed in terms of flow

when river levels are unpredictable and appropriators “ha[ve] to

take the water when, as[,] and if it [is] in the stream.” Tulare

Irrigation Dist. v. Lindsay-Strathmore Irrigation Dist., 45 P.2d 972, 996

(Cal. 1935). In such situations, flow awards cannot be thought of as

“continuous awards” but are limited to the amount of water the

appropriator has put and continues to put to beneficial use. Id. at

996–97.

7

 In Utah, water duty is not a component of a water right.

However, because water duties established by the state engineer are

indicative of whether the water applied to a given piece of land is

beneficially used, water duty could be presented as evidence of

partial forfeiture through waste. See supra ¶¶ 23–24.

8

 The Cox Decree is available on the website of the Utah Division

of Water Rights at http://www.waterrights.utah.gov/adjdinfo/

decrinfo/default.asp.

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Opinion of the Court

¶38 Here, we do not interpret Vincent’s water right as a

continuous award. If Vincent were to constantly divert twenty-two

c.f.s. during an irrigation season, it would draw more than 9,000 acre

feet of water, which is far more than Vincent or its predecessors have

ever used. The proposed determination drawn up in preparation for

the 1936 general adjudication of the Sevier River system indicated

that Vincent’s predecessor annually used 5,000 acre feet of water.

Because the Cox Decree does not indicate that this amount was

disputed or altered, we agree with the district court that it is

reasonable to infer that the volume component of Vincent’s water

right is 5,000 acre feet. Thus, Vincent’s water right consists of a

maximum rate of diversion of twenty-two c.f.s. and a total volume

allowance of 5,000 acre feet.9

IV. ISSUES LIKELY TO ARISE ON REMAND

A. Proper Forfeiture Analysis

¶39 Forfeiture occurs when an appropriator fails to use

material amounts of a water allowance during five or seven

consecutive years10 without securing an extension of time from the

state engineer. Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 135

P.2d 108, 112 (Utah 1943); UTAH CODE § 73-1-4(2)(a). Because most

flow allowances are not “continuous awards,” supra ¶ 37,

appropriators do not forfeit any part of their right by failing to divert

water at the maximum flow allowance. A forfeiture analysis should

instead focus on volume. If during five consecutive irrigation

seasons, an appropriator has failed to use material amounts of its

volume allowance, a forfeiture has occurred. The volume component

of the water right should be reduced by the unused amount. The

9

 To simplify future water disputes, we encourage district courts

conducting general adjudications to define water rights in terms of

both flow and volume. Both are necessary to “fully and completely

define the rights of . . . claimants to the use of the water.” UTAH

CODE § 73-4-12; see also Tulare Irrigation Dist., 45 P.2d at 996–97

(holding that to prevent waste and to clarify entitlements, water

rights “should be fixed in cubic feet per second, with a maximum

limitation in acre feet, measured, of course, by the maximum

number of acre feet used by each appropriator in the past”).

10 The statutory forfeiture period has changed several times. At all

times relevant to this appeal, the period was five years. UTAH CODE

section 73-1-4(1)(a) (prior to 2002 amendments); id. 73-1-4(3)(a)

(subsequent to 2002 amendments). The current period is seven years.

Id. 73-1-4(2)(a) (2013).

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DELTA v. VINCENT

Opinion of the Court

flow component may be reduced in proportion to the volume

reduction, at the district court’s discretion.

¶40 Materiality, or substantiality, is another important

component of a forfeiture analysis. UTAH CODE § 73-1-4(3)(f)(iii)

(2002) (stating that forfeiture does not occur “when a water user has

beneficially used substantially all of a water right within a five-year

period”); Rocky Ford, 135 P.2d at 112. At the beginning of each

growing season, farmers plant their fields according to predictions

of how much water will be available that year. If snow levels and

other indicators suggest a dry summer, a farmer may reasonably

choose to not plant all of her fields. If, in fact, shortages turn out to

be less severe than predicted, the farmer in retrospect may have been

able to plant slightly more. However, a small amount of non-use,

especially when resulting from a reasonable prognostication of how

much water would be available, will generally not support a

forfeiture. We cannot expect farmers to predict the weather with

more certainty than climatologists, and the materiality exemption

protects them when they fail to do so. The materiality exemption

also serves to deter forfeiture claims premised on de minimis nonuse.

¶41 Finally, the number of acres irrigated is not determinative

in a forfeiture analysis, though it may be relevant insofar as it

indicates the volume of water used or whether water usage is

beneficial. Farmers may reduce the total acres irrigated to grow a

more water-intensive crop so long as they beneficially use their full

entitlement. The central question in any forfeiture proceeding is

whether the appropriator used all of its water allowance in a

reasonable manner and for a beneficial purpose.

B. Early Water

¶42 The parties dispute whether the water available to Vincent

and its predecessor between March 1 and April 15 should be

counted as available water for purposes of forfeiture analysis. The

Cox Decree states that the water right runs from March 1 through

October 1. It further states that Vincent’s predecessor,

the Samuel McIntyre Investment Company[,] shall have

the right to the use of the water allocated . . . as above

set forth, to be used by direct diversion from March 1 to

April 15, both dates inclusive. From April 16 to October

1 in each and every year [it] shall have the right to store

and impound in the Sevier Bridge Reservoir 90% of all

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Opinion of the Court

the water yielded by said river for satisfying [its] rights

from April 16 to October 1.

¶43 As discussed in the previous section, the focus of a

forfeiture analysis should be on volume. Thus, if Vincent and its

predecessor used substantially all of their allotment of 5,000 acre

feet, they have not forfeited their water right, even if they did not

use any water between March 1 and April 15. Distinguishing the

pre-irrigation season would be significant only in a drought year,

when the physical-causes exception applies. Under the physicalcauses exception, unavailable water cannot be forfeited, but water

that is available but not beneficially used can. See supra ¶ 32. We are

not persuaded that the Cox Decree, the proposed determination, or

any other authority supports a categorical exclusion of early water

from this physical-causes exception analysis. However, on remand,

Vincent may seek to persuade the district court that under the

physical causes exception, this early water was not available for use

because the ground was not ready to receive it.

C. Irrigation of Natural Habitats

¶44 The district court held that genuine issues of material fact

precluded summary judgment on the questions of (1) how much

water Vincent used on its bird hunting grounds and (2) whether

such use was beneficial. We do not disturb this ruling but wish to

reiterate that “watering indigenous vegetation generally is not a

beneficial use.” Butler, Crockett & Walsh Dev. Corp. v. Pinecrest Pipeline

Operating Co., 2004 UT 67, ¶ 55, 98 P.3d 1. An appropriator has the

burden to show that under “the individual facts and circumstances

of [the appropriator’s] situation,” watering a natural habitat is

beneficial. Id. Triers of fact should be wary of hindsight justifications

for waste and of fanciful uses whose primary purpose is to protect

a water right from forfeiture. See id. ¶ 54.

CONCLUSION

¶45 A water right is maintained only to the extent it is used

efficiently and for a proper purpose. Summary judgment was

improperly granted in this case for the reasons explained above. We

remand for further proceedings consistent with this opinion.

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