| OCR Text |
Show 264 LOSS OF WATER RIGHTS IN WATERCOURSES Relation of nonuse to intent.-Mere nonuse of the water to which an appropriator is entitled, without some proof of intent, is not conclusive evidence of abandonment of the right.43 In 1908, the South Dakota Supreme Court stated: "It is well settled that mere nonuser of water does not amount to abandonment, nor is mere lapse of time alone sufficient to establish abandonment. In all cases abandonment is a question of intention."44 However, in determining the question of intent to abandon a water right, the courts may take nonuse of the water and other pertinent circumstances into consideration.45 Nonuse of the water, therefore, affords evidence from which the intent to abandon the right may be inferred; but it still is merely evidence of such intent,46 and it may be rebutted by evidence showing that, notwithstanding such nonuse or want of possession, the owner did not intend to abandon the water right.47 "Nonuser for any period whatever may be urged as evidence of an intention to abandon; but under no circumstances does mere nonuser extinguish title."48 Eventually it creates a presumption of such intention, but it is a rebuttable presumption. "Decisions of courts of last resort are legion in support of the firmly recognized principle that where a water right is not used for an unreasonable period of time, intent to abandon it may be implied.''' [Emphasis added.]49 Some of the facets of this considerable subject follow. "A prima facie showing of an intention to abandon the right to use a 214, 225, 300 N.W. 17 (l94l);Anson v. Arnett, 250 S.W. (2d) 450, 454 (Tex. Civ. App. 1952, error refused n.x.e.); Sander v. Bull, 76 Wash. 1, 6, 135 Pac. 489 (1913). 43Land v. Johnston, 156 Cal. 253, 256, 104 Pac. 449 (1909); Balabanoff v. Kellogg, 10 Alaska 11, 17, 118 Fed. (2d) 597, 599 (9th Cir. 1940), certiorari denied, 314 U.S. 635 (1941); Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 691 (1904); Featherman v. Hennessy, 42 Mont. 535, 540-541, 113 Pac. 751 (1911); In re Willow Creek, 74 Oreg. 592, 664, 144 Pac. 505 (1914), 146 Pac. 475 (1915); Thorp v. McBride, 75 Wash. 466, 468-469, 135 Pac. 228 (1913); Valcaldav. Silver Peak Mines, 86 Fed. 90,95 (9th Cir. 1898). "Edgemont Impr. Co. v. N. S. Tubbs Sheep Co., 22 S. Dak. 142, 145, 115 N.W. 1130 (1908). 4S/« re Manse Spring & Its Tributaries, 60 Nev. 280, 290, 108 Pac. (2d) 311 (1940); Valcalda v. Silver Peak Mines, 86 Fed. 90, 95 (9th Cir. 1898). 46Lindblom v. Round Valley Water Co., 178 Cal. 450, 455, 173 Pac. 994 (1918). 41Utt v. Frey, 106 Cal. 392, 398, 39 Pac. 807 (1895); Integral Quicksilver Min. Co. v. Altoona Quicksilver Min. Co., 75 Fed. 379, 381 (9th Cir. 1896). In Moore v. Sherman, 52 Mont. 542, 546, 159, Pac. 966 (1916), the trial court found that neither the de- fendant nor her predecessors intended to abandon the right, "but, on the contrary, so far as they had any conscious intent, it was not to abandon either the ditch or water right. In the absence of any intention to abandon there could not have been an adandon- ment. There was nonuser for ten years, but nonuser does not constitute abandonment. If any principle of the law of water rights can be settled, this one is." 4SMoore v. United Elkhorn Mines, 64 Oreg. 342, 352, 127 Pac. 964 (1912), 130 Pac. 640 (1913). 49Knapp v. Colorado River Water Conservation Dist., 131 Colo. 42, 54, 279 Pac. (2d) 420 (1955). |
