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Show ABANDONMENT AND STATUTORY FORFEITURE 267 circumstances must disclose some definite act showing intention to aban- don."61 And a Federal court said, "Abandonment is a question of intention, to be evidenced by overt acts; but, when such overt acts appear, the right to appropriate water, like an usufructuary right, ceases and cannot be resumed after the rights of others have intervened."62 It was held in a Washington case that the mere failure to mention the water right specifically in deeds or leases was not evidence of abandonment. This was especially so in the instant case, as it appeared that the persons then in possession, even if not asserting title thereto, were using all the water that flowed to the lands.63 In an Oregon case, one Mrs. Staub filed with the State Engineer an application for a permit to appropriate a specific quantity of water from a certain creek for irrigation and domestic purposes on a definite tract of land. "Defendants argue that, by making such filing, she expressly abandoned whatever rights she may have had prior thereto. The argument is ineffectual. There is no evidence that Mrs. Staub intended to abandon her former rights, and the law presumes to the contrary."64 Previously, under "Abandonment Defined-Distinguished from abandon- ment of facilities," it is stated that much litigation has reached the high courts of Colorado over proposed changes in points of diversion, pursuant to statutory authority and special court procedure, and that in some of these cases questions of abandonment have arisen. These statutory changes in diversion places are made only with respect to rights decreed under the formal State procedure and by the court that has jurisdiction over the rights. With respect to these decreed rights themselves, questions of abandonment arise. With respect to evidence therein, the Colorado Supreme Court said:65 Evidence of abandonment must, of course, be of facts which occur after the decree which awards the priorities, but previous condi- tions, declarations of the parties and the proceedings in the suit of which that decree is the result are competent to show conditions and intent subsequent to the decree. Some circumstances evidencing abandonment-Following are some court decisions in which the circumstances were held to evidence abandonment of appropriative rights. As noted above, nonuse of water and want of possession may constitute rebuttable evidence of intent to abandon a water right which, if not rebutted, may in some cases be sufficient to warrant a finding of abandon- ment. 61Anson v. Arnett, 250 S.W. (2d) 450, 454 (Tex. Civ. App. 1952, error refused n.r.e.). 62Anderson Land & Stock Co. v. McConnett, 188 Fed. 818, 823 (D. Nev. 1910). 63Paysv. Roseburg, 123 Wash. 82, 85, 211 Pac. 750 (1923). "Staub v. Jensen, 180 Oreg. 682, 690,178 Pac. (2d) 931 (1947). 6SNew Mercer Ditch Co. v. New Cache la Poudre Irrigating Ditch Co., 70 Colo. 351, 353-354, 201 Pac. 557 (1921). |
