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Show 272 LOSS OF WATER RIGHTS IN WATERCOURSES decision the Montana Supreme Court stated:97 The evidence in this respect merely shows the nonuser of the water for an indefinite period while the owners were laboring under certain disabilities, and the resumption of the use thereof when possession was secured by those in a position to use the water, and the fact that other parties had, in the meantime, acquired junior rights, in no manner affected the owner's right to resume the use of his property. (10) Use of water continuously on other land. A presumption that one who abandoned his desert entry intended to abandon also his water right was overturned by the fact that he continuously thereafter used the water on other land in his possession.98 (ll)Nonuse in absence of a substituted use. In answer to a claim of abandonment of a water right, the Hawaii Supreme Court held that mere nonuse of water, of however long duration, does not constitute an abandonment of the right, in the absence of a substituted use, or of intervening equities, or of adverse use. Furthermore, from the facts of the case, the court was not convinced that there had been a real nonuse of the right.99 Circumstances regarding planning and operation.-(I) Change in original plan. The mere fact that plaintiff at one time contemplated the construction of two additional reservoirs by no means indicated the abandonment of its general scheme for diversion and storage of water as contemplated in its original appropriation.100 (2) Use of a power plant temporarily erected because of construction difficulties respecting transmission. This does not indicate abandonment of the appropriation if reasonable diligence is used in consummating the original plan.101 (3) Use of natural channel to convey water. The discharge of water into a natural channel, whether dry or containing water to which other appropriators have rights, for the sole purpose of conveying it to a lower point at which the water will be recaptured, is not an abandonment of the water or the water right.102 Obviously there is no jntention of abandoning the water right. The "St. Onge v.Blakely, 76 Mont. 1, 15, 245 Pac. 532 (1926). "Haysv. Buzard, 31 Mont. 74, 80-81, 77 Pac. 423 (1904). "Carter v. Territory of Hawaii, 24 Haw. 47, 54-57 (1917). 100Pleasant Valley Irr. & Power Co. v. Okanogan Power & Irr. Co., 98 Wash. 401, 411, 167 Pac. 1122(1917). 101 State ex rel. Van Winkle v. People's West Coast Hydro-Elec. Corp., 129 Oreg. 475, 483-484, 278 Pac. 583 (1929). l02Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143, 151-152, 70 Am. Dec. 769 (1858); Harriman Irr. Co. v. Keel, 25 Utah 96, 115, 69 Pac. 719 (1902). "It would be a harsh rule * * * to require those engaged in these enterprises to construct an actual ditch along the whole route through which the waters were carried, and to refuse them the economy that nature occasionally afforded in the shape of a dry ravine, gulch, or caflon." Hoffman v. Stone, 7 Cal. 46, *49 (1857). |