| OCR Text |
Show ABANDONMENT AND STATUTORY FORFEITURE 295 Prior to enactment of the statute, the New Mexico Supreme Court stated that an appropriative right might be lost by nonuse. After its enactment the supreme court referred to the forfeiture provision and stated that it was merely declaratory of the law as already established in the jurisdiction by repeated judicial decisions, except that by those decisions the time element was not a definite period but a reasonable time, depending to some extent on the circumstances. North Dakota.-When an appropriator or his successor in interest ceases to use the appropriated water for a beneficial or useful purpose for 3 successive years, unless the failure was due to the unavailability of water, a justifiable inability to complete the works, or other good and sufficient cause, the State Engineer shall declare such "water permit or right" forfeited. The statutes provide procedures for the forfeiture and cancellation of the right.226 Oklahoma.-When the party entitled to beneficially use all or any part of the water claimed by him, for which a right of use has vested, fails to use the water for the purpose for which appropriated, for 7 continuous years, such unused water shall revert to the public and be regarded an unappropriated public water. The statute includes procedures whereby the administrative agency may cancel such unused rights. Failure of the agency to determine that a water right has been lost in whole or in part through nonuse shall not in any way revive or continue the right.227 Oregon.-When the owner of a perfected and developed water right ceases or fails to use the appropriated water for 5 successive years, the right ceases and the nonuse shall be coaeluswely presumed to be an abandonment of the right. Such unused water reverts to the public and is again subject to appropriation. Cities and towns are exempted from this provision.228 This provision was 225Albuquerque Land & In. Co. v. Gutierrez, 10 N. Mex. 177, 237-238, 61 Pac. 357 (1900);Hagerman Irr. Co. v.McMwry, 16 N. Mex. 173^ 179-180, 113 Pac. 823 (1911). "*N. Dak. Cent Code Ann. §§61-04-23 to 61-04-26 (Supp. 1969). Section 61-04-24 provides, "If it shall appear that any water appropriation or portion thereof, whether issued prior or subsequent to July 1, 1963, has not been used for a useful or beneficial purpose, or having been so used at one time has ceased to be used for such purpose for more than three successive years," unless the failure was due to the unavailability of water, a justifiable inability to complete the work, or other good and sufficient cause, the State Engineer shall set a time and place for hearing for the purpose of cancelling such unused water rights. For judicial interpretation of similar language in the Nebraska statutes, see the discussion at notes 217-219 supra. Section 61-04-23 of the statute provides that a water permit or right held by a State agency, department, board, commission, or institution may be declared forfeited only by the North Dakota Legislative Assembly. Section 61-04-24 provides inter alia that a "prescriptive water permit" acquired under the statute may be lost by forfeiture. It is described under "Prescription- Elements of the Prescriptive Right-Statute of Limitations-Abstracts of Western State statutory provisions limiting or pertaining to adverse possession of water rights," infra. M7Okla. Stat Ann. tit. 82, § § 32A and 32B (1970). Ii8Oreg. Rev. Stat. §540.610 (Supp. 1969). |
