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Show ABANDONMENT AND STATUTORY FORFEITURE 269 the premises for 18 years "clearly establishes an intention to abandon the right;" and a certain claim now asserted "is too stale to be considered by a court of equity."75 (b) A mining ditch was originally dug by one Anderson and others. Small quantities of water were diverted from the ditch for irrigation by some of the owners; but some years prior to the decision they all leased their interests to Anderson for a term of 99 years, "which was an abandonment of their irrigation rights." One owner was excepted because he reserved his right to irrigate from the ditch.76 (7) Washington. By deed, appellants and their predecessors conveyed all water to which they had title in a certain creek above respondents' lands; this included the "percolated" waters. Consequently they reserved no title in any waters, or the residuum thereof, "except such as the grantees did not divert and use. They diverted and used all." Hence appellants abandoned all rights to any of the seepage water when they conveyed the same by deed.77 (8) Wyoming. Abandonment and relinquishment of irrigated lands operated as an abandonment of the right to so much of the water as needed for irrigation thereof and, at the same time, any right of way for conveying the water to such lands.78 Burden of proof. -"The authorities are all of one accord in holding that the party claiming abandonment has the burden of proving his contention by a preponderance of the evidence, and that to establish abandonment the evidence to that effect should be clear and definite."79 This principle appears to be uniformly accepted by the western courts of last resort.80 Some Circumstances not Constituting Abandonment Enforced discontinuance of water use.-"An abandonment of water right * * * must be voluntary."81 Therefore, abandonment cannot be accomplished through enforced discontinuance of the use of the water-when nonuse results from circumstances not under the appropriator's control.82 7SOviattv. Big Four Min. Co., 39 Oreg. 118, 125, 65 Pac. 811 (1901). 76Davis v. Chamberlain, 51 Oreg. 304, 312-313, 98 Pac. 154 (1908). "McFadden v. Ferguson, 99 Wash. 683, 691-692, 170 Pac. 365 (1918). 78Rutherford v. Lucerne Canal & Power Co., 12 Wyo. 299, 313-314, 75 Pac. 445 (1904). 79 Thomas v. Ball, 66 Mont. 161, 168, 213 Pac. 597 (1923). 80 See, e.g., Ward v. Monrovia, 16 Cal. (2d) 815, 820-821, 108 Pac. (2d) 425 (1940); Lema v. Ferrari, 27 Cal. App. (2d) 65, 73, 80 Pac. (2d) 157 (1938); Cline v. McDowell, 132 Colo. 37, 42, 284 Pac. (2d) 1056 (1955);Pouchoulou v. Heath, 137 Colo. 462, 463, 326 Pac. (2d) 657 (1958); Carter v. Territory of Hawaii, 24 Haw. 47, 55 (1917); Smithfield West Bench In. Co. v. Union Cent. Life Ins. Co., 113 Utah 356, 363, 195 Pac. (2d) 249 (194%); Miller v. Wheeler, 54 Wash. 429, 436, 103 Pac. 641 (1909); Laramie Rivers Co. v. LeVasseur, 65 Wyo. 414, 449, 202 Pac. (2d) 680 (1949); Lake DeSmet Res. v. Kaufmann, 75 Wyo. 87, 102, 292 Pac. (2d) 482 (1956). slScherck v. Nichols, 55 Wyo. 4, 24, 95 Pac. (2d) 74 (1939). M55 Wyo. at 23-24; Huffner v. Sawday, 153 Cal. 86, 92, 94 Pac. 424 (1908); St. Onge v. |
