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Show ABANDONMENT AND STATUTORY FORFEITURE 285 To constitute abandonment there must be a concurrence of act and intent-the relinquishment of possession and the intent not to resume it for a beneficial use * * *. ? * * * As we understand this record, there is not any evidence of abandonment except the bare fact of nonuser; while, on the contrary, the resumption of the use of the water in 1900 is some evidence, however slight, that the owners did not intend to abandon the appropriation by their failure to employ it from 1893, and the sale of the right * * * for valuable consideration in 1909 is some evidence that they had not abandoned it in 1905. Oklahoma.-If the owner of land to which water is appurtenant abandons the use of the water upon such land, such water shall become public water subject to appropriation.171 South Dakota.-If the owner of land to which water is appurtenant abandons the use of the water upon such land, such water shall become public water subject to appropriation.172 Texas.-If any lawful appropriation or use of water is willfully abandoned during any 3 successive years, the right to use the water shall be forfeited and the water shall be again subject to appropriation.173 A Texas court of civil appeals has declared that under this provision the appropriator must intend to abandon the water. Said the court, "Mere nonuser for the three-year period prescribed by Article 7544 without a wilful intention to abandon will not result in the loss of rights under a permit. This seems clear from the language of the statute which uses the words, 'wilfully abandoned.' "174 171Okla. Stat. Ann. tit. 82, §34 (1970). 172 S. Dak. Comp. Laws Ann. §46-5-36 (1967). 173Tex. Rev. Civ. Stat. Ann. art. 7544 (1954). 11AAnson v. Arnett, 250 S.W. (2d) 450, 454 (Tex. Civ. App. 1952, error refused n.r.e.), discussed in Texas Water Rights Comm'n v. Wright, 464 S.W. (2d) 642, 644, 646 (Tex. Sup. Ct. 1971), in which the Texas Supreme Court said this statute "authorized the termination of water permits upon proof of three years of willful abandonment." Id. at 646. A Texas court of civil appeals did not believe that failure of a city to make immedi- ate use of all water specified in its permit would support the hypothesis of "wilful abandonment." "A city may be reasonably expected to grow and develop over a period of years, and if it does so, its demands for water, as well as other necessaries, would naturally increase." Lower Nueces River Water Supply Dist. v. Cartwright, 274 S.W. (2d) 199, 208 (Tex. Civ. App. 1954, error refused n.r.e.). Another Texas statute, relating to partial loss of a water right, provides that if any portion of the water authorized to be diverted and used under a permit or certified filing is not beneficially used for 10 consecutive years, and if the holder of the right has not been diligent in applying the unused portion of the water to beneficial use and has not been justified in such nonuse or does not have a bona fide intention of putting the unused water to beneficial use under the terms of the permit or certified filing within a reasonable time after a hearing by the Texas Water Rights Commission, then the Commission shall cancel such permit or certified filing with respect to the unused |