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Show 112 ARIZONA change the use of water within irrigation districts, agricultural improvement districts, or water users' associations. A natural waterway may be used to carry imported water, if such use can be made without causing damage or interfering with the natural flow which has been previously appropriated by others. If the parties cannot agree on the diversion of imported and natural flow water, then the superintendent of the district shall make the division. Also, the owner of reservoir water may use the bed of a stream or other natural watercourse to carry the water from the reservoir to the consumer.62 3.4 Loss of Rights A. STATUTORY FORFEITURE The statute in Arizona governing loss of water rights provides that when the owner of the right to use water fails to use the water for 5 successive years, the right shall cease, and the water shall revert to the public and be subject to appropriation.63 The Arizona Supreme Court has noted the fundamental distinction between abandonment and forfeiture. That is, the intention of the user is not an essential element of forfeiture and there can be a forfeiture against and contrary to the intention of the water user. It is the non- use of the water during the statutory period that is the governing factor.64 B. ABANDONMENT As discussed above, the Arizona court has noted the conceptual distinction which exists between statutory forfeiture and abandon- ment. The latter requires an intent to abandon the right in addition to actual nonuse to cause a loss of the right. This intent can be evidenced by the declaration of the appropriator or by his acts.65 C. ADVERSE USE A use of water does not become adverse until a superior right is infringed upon and the owner suffers a deprivation of water. If this occurs, the adverse user may become entitled to a prescriptive right by continuous adverse use for the full period of limitation.68 The person claiming an adverse use right must show that his use of the water was exclusive of any use by the rightful owner,67 and also that he was using the water openly, notoriously, and adversely.68 D. ESTOPPEL When one stands passively by and allows another to cultivate and irrigate fields for a period of 16 years under the belief that he has a « Ariz. Rev. Stat. sees. 45-172, 173;, 174. «a Ariz. Rev. Stat. sec. 45-101. «* Gila Water Co. v. Green, 29 Ariz. 304, 241 Pac. 307 <1925). « Gould v. Afaricopa Canal Co., 8 Ariz. 429. 76 Pac. 598 (1904). ««Egan V. Estrada, 6 Ariz. 248, 56 Pac. 721 (1899). « Mullen v. Gross, 84 Ariz. 207, 326 P. 2d 33 (1958). 88 Gross v. MacCornack, 75 Ariz. 243, 255 P. 2d 183 (1953). |
