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Show 284 LOSS OF WATER RIGHTS IN WATERCOURSES the controversy is between states, and not between private litigants; the burden and quantum of the proof being governed accordingly. The Supreme Court ordered that a decree be entered confirming the report of the master and dismissing Washington's complaint upon the merits. Some Statutory Provisions The laws relating to abandonment have generally been a matter of court-created law. There are, however, some States that have statutory provisions expressly dealing with the subject. Following is a summary of the provisions in seven States. These provisions generally appear to be essentially a codification of the common law principles. The abandonment provisions of five of these seven States (Alaska, Montana, Oklahoma, South Dakota, and Washington) are like court-created abandonment in that they do not specify any particular length, of time. Colorado provides for a rebuttable presumption of abandonment arising from nonuse for a term of years, for purposes of tabulating water rights. Texas provides for the loss of a water right following willful abandonment for a term of years. Some of the statutes provide for declarations of abandonment by State agencies. Alaska.-If an appropriator, with an intention to abandon, does not beneficially use all or part of his appropriated water, the Commissioner of Natural Resources may declare the appropriation wholly or partially abandoned and revoke the certificate of appropriation. Appropriations so abandoned revert to the State and the water becomes unappropriated water.166 Colorado.-The statute defines abandonment of a water right as the whole or partial termination of the water right as a result of the owner's intent to permanently discontinue the use of all or part of the water available under his right.167 For purposes of the procedures for tabulating water rights by the State Engineer and the division engineers, when the person entitled to use water fails, for 10 years or more, to beneficially apply the water available under a water right, this creates a rebuttable presumption of abandonment of a water right with respect to so much of the available water as has not been used.168 Montana.-When an appropriator or his successor in interest abandons and ceases to use the water for a useful or beneficial purpose, the right ceases. Questions of abandonment shall be questions of fact and shall be determined as other questions of fact.169 Referring to an earlier version of this statute, the Montana Supreme Court declared:170 '"Alaska Stat. §46.15.140(a) (Supp. 1966). 167 Colo. Rev. Stat. Ann. § 148-21-3(13) (Supp. 1969). 168Id. § 148-21-28(2)0). With respect to so-called abandonment of conditional water rights, see note 157 supra and chapter 8 at notes 736-742. 169Mont. Rev. Codes Ann. § 89-802 (1964). lv> Thomas v. Ball, 66 Mont. 161, 213 Pac. 597, 599-600 (1923). |