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Show 726 appropriation doctrine would be applied as against a claim by a land- owner that, irrespective of whether or not he has made actual use of the water percolating through his land, he has a paramount right thereto. The statutes of Colorado do not provide for the forfeiture of appro- priative rights by reason of failure to use the water for specified periods of time, as is the case in many Western States. Many decisions of the supreme court, however, have been concerned with the loss of water rights by abandonment. In a recent case involving abandonment there was no dispute as to the nonuse of the ditch and the water for almost 40 years, and the trial court found that the ditch and its priority had been abandoned.79 In affirming the judgment of the trial court, the supreme" court reviewed various decisions relating to abandonment of water rights and thus summarized the controlling principles: We conclude from these statements that while the burden of proof of intent to abandon is on him who asserts it, yet such intent may be proved by evidence of acts and failure to act as well as by mere words; that nonuse constitutes such failure to act; that proof of nonuse for an unreasonable period establishes a presumption of abandonment and is prima facie proof thereof; that nonuse for the period here proved is an unreasonable period; that to rebut the presumption of abandonment arising from such long period of nonuse, there must be established not merely expressions of desire or hope or intent, but some fact or condi- tion excusing such long nonuse. In the instant case, the exist- ence of such a fact or condition was an issue to be determined by the trial court and the evidence amply supports its determination. Jurisdiction of all questions concerning the determination of water rights is vested exclusively in the courts.80 The State Engineer is called upon by the courts in adjudication proceedings for filings of appropria- tions in his office,81 and decrees of adjudication become effective when certified copies thereof have been filed in the offices of the State Engi- neer and of the irrigation division engineer for the guidance of the State water officials in regulating the distribution of water accordingly; ** "Mason v. Hills Land & Cattle Co., 119 Colo. 404, 407, 408-409, 204 Pac. (2d) 153 (1949). The principles so stated would be generally applicable in other Western jurisdictions as well, with respect to abandonment as distinguished from statutory forfeiture of appropriative rights. 80 Colo. Stats. Ann., 1947, Cum. Supp., ch. 90, § 189 (2). The statutory provisions governing the adjudication of priority rights to the use of water were repealed and replaced by new provisions in 1943: Colo. Laws 1943, ch. 190, codified in 1947 Cum. Supp., ch. 90, §§ 189 (1) to 189 (25). M Colo. Stats. Ann. 1935, ch. 90, § 193. M Colo. Laws 1943, ch. 190, § 15; 1947 Cum. Supp., ch. 90, § 189 (15). |