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Show 278 LOSS OF WATER RIGHTS IN WATERCOURSES Where an appropriator abandons a right and thereafter reasserts his right to the abandoned appropriation, it amounts to a new appropriation.136 Reversion of water to which the right formerly attached.-Upon the abandonment of a water right, the water so lost again becomes publici juris, subject to appropriation by others.137 Likewise, upon abandonment of the use of any part of the water to which an appropriative right attaches, that part becomes subject to new appropriation.138 The water rights statutes of some States provide that if the owner of land to which water has become appurtenant abandons the use of such water upon such land, such water shall become public water, subject to general appropriation.139 Elsewhere it has been provided or said that upon abandonment by an appropriator, the water reverts to the State, whereupon it is subject to new appropriation.140 In a Colorado case it was held that certain waters in controversy had been "abandoned to the stream," not to other individual appropriators.141 The general question was thus summed up in 1947 by a California district court of appeal:142 When water rights have been abandoned they may be claimed by other persons who are so situated as to use the water, and when a mining claim has been abandoned it returns to the public domain. In such cases the abandonment is accomplished by the affirmative acts of the claimant or user or by his failure to make use of that which he has claimed. Such abandonment leaves the property as though he had never owned or occupied it and it is subject to appropriation by any other person who desires to use it in the manner provided by law. The Hawaii Supreme Court held that the ancient water rights held for irriga- tion purposes by certain individuals who had abandoned them must be regarded as having reverted to the Territory.143 Presumably the reversion to the Territory resulted from the adjudicated ownership by the Territory of all the waters of the ordinary or normal flow of the stream, subject to vested appurtenant rights.144 l360'Sheav.Doty, 68 Mont. 316, 320-321, 218 Pac 658 (1923). 131 Winter v. Simons, 27 Oreg. 1, 6, 39 Pac. 6 (1895); Barkley v. Tieleke, 2 Mont. 59, 64 (1874). An abandoned mining claim likewise becomes publici juris, open to new loca- tion by the first comer. Deny v. Ross, 5 Colo. 295, 300-301 (1880). 138Smith v. Green, 109 Cal. 228, 235, 41 Pac. 1022 (1895). 139Okla. Stat. Ann. tit. 82, §34 (1970); S. Dak. Comp. Laws Ann. §46-5-36 (1967). 140 Alaska Stat. §46.15.140(a) (Supp. 1966); Wash. Rev. Code §§90.14.160, 90.14.170, and 90.14.180 (Supp. 1970); In re Manse Spring & Its Tributaries, 60 Nev. 280, 286-287, 108 Pac. (2d) 311 (1940);Bowers v.McFadzean, 82 Colo. 138, 142, 257 Pac. 361 (1927). 141 Kaess v. Wilson, 132 Colo. 443, 447-448, 289 Pac. (2d) 636 (1955). 1*3Helvey v. United States Bldg. & Loan Assn. of Los Angeles, 81 Cal. App. (2d) 647, 650, 184 Pac. (2d) 919 (1947). 143Carter v. Territory of Hawaii, 24 Haw. 47, 52, 68 (1917). !44In Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675 (1904), a |
