| OCR Text |
Show ABANDONMENT AND STATUTORY FORFEITURE 265 particular quantity of water may be made by evidence of the failure to apply such water to a beneficial use for an unreasonable period of time." [Emphasis added.]s0 A failure to use water for a time is competent evidence on the question of abandonment and if continued for an unreasonable period it may fairly create a presumption of intention to abandon; "but this presumption is not conclusive, and may be overcome by other satisfactory proofs."51 "The non-use of a right is not sufficient of itself to show abandonment but if the failure to use is long continued and unexplained, it gives rise to an inference of intention to abandon." [Emphasis added.]52 The qualification "unexplained" appears in other cases.53 Concurrence of act and intent-It follows that to constitute the abandon- ment of an appropriative right, there must be a concurrence of act and intent.54 This is an important feature of the law of abandonment of water rights. It is well to repeat that neither the intent to abandon the right without S0Cundy v. Weber, 68 S. Dak. 214, 225-226, 300 N.W. 17 (1941). "Sieberv. Frink, 7 Colo. 148, 154, 2 Pac. 901 (1884). "Anson v. Arnett, 250 S.W. (2d) 450, 454 (Tex. Civ. App. 1952, error refused n.r.e.). 53Farmers' Irr. Dist. v. Frank, 72 Nebr. 136, 155, 100 N.W. 286 (1904). A lapse of 25 years, unexplained, would be very strong evidence of an intention to abandon, but other circumstances may show that there was no such intention. Gila Water Co. v. Green, 27 Ariz. 318, 329, 232 Pac. 1016, 29 Ariz. 304, 306, 241 Pac. 307 (1925). A period of 20 or even 18 years is too long for nonuse to continue without presuming abandonment, "unless some peculiar fact or condition can be shown by which the party or parties might be excused." Green Valley Ditch Co. v. Frantz, 54 Colo. 226, 233, 129 Pac. 1006 (1913). The continued practical nonuse of a water right of great value for 40 years is evidence of abandonment, and when not reasonably explained is sufficient to authorize an inference that the nonuse was with intent to abandon. Farmers Res. & Irr. Co. v. Fulton Irrigating Ditch Co., 108 Colo. 482, 496, 120 Pac. (2d) 196 (1941). To rebut the presumption of abandonment arising from an unreasonably long period of nonuse, "there must be established not merely expressions of desire or hope or intent, but some fact or condition excusing such long nonuse." Knapp v. Colorado River Water Conserva- tion Dist., 131 Colo. 42, 55, 279 Pac. (2d) 420 (1955). The court added that neither may such nonuse be justified by a showing that the owner intended to sell the property, or that it was kept listed with real estate brokers as a matter of speculation on the market-that being "wholly foreign to the principle of keeping life in a proprietary right and is no excuse for failure to perform that which the law requires." See Cross v. Jones, 85 Nebr. 77, 81-82, 122 N.W. 681 (1909), for a detailed statement of the circumstances showing defendant's lack of sustained interest and activity during a considerable period of time which led the Nebraska Supreme Court to conclude "that the trial judge was justified in finding that defendant had abandoned the rights acquired by him from his grantors to overflow plaintiffs' land." M Utt v. Frey, 106 Cal. 392, 397-398* 39 Pac. 807 (1895); this means leaving the premises or property vacant so that it may be appropriated by the next comer, coupled with the intention of not returning, Woodv. Etiwanda Water Co., 147 Cal. 228, 234, 81 Pac. 512 (1905); Carter v. Territory of Hawaii, 24 Haw. 47, 55 (1911); Joyce v. Murphy Land & Irr. Co., 35 Idaho 549, 555, 208 Pac. 241 (1922); Thomas v. Ball, 66 Mont. 161, 167, 213 Pac. 597 (1923); Farmers' Irr. Dist. v. Frank, 72 Nebr. 136, 154, 100 N.W. 286 (1904); In re Willow Creek, 74 Oreg. 592, 641-642, 664, 144 Pac. 505 (1914), 146 Pac. |
