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Show 298 LOSS OF WATER RIGHTS IN WATERCOURSES relating to water for public and industrial purposes are conclusive evidence of abandonment of rights to use water for power purposes.243 Wyoming.-If the owner of a ditch, canal, or reservoir fails to use the water therefrom for irrigation or other beneficial purposes for any 5 successive years, he shall be considered as having abandoned the same and shall forfeit all water rights, easements, and privileges appurtenant thereto. Such unused water may again be appropriated for irrigation or other beneficial purposes. The statutes provide procedures for administrative declarations of "abandonment."244 The Wyoming Supreme Court has held that administrative declarations of "aban- donment" may be made either in whole or in part.245 Computation of the Forfeiture Period All of the 16 States having forfeiture statutes pertaining to surface watercourses provide for the cessation of the right for nonuse for a specified period of years, ranging from 3 to 10 years. In addition, two States (California and Nebraska) have statutes containing general provisions declaring that the right ceases for failure to exercise it, without any reference to a period of years.246 The legislatively declared number of years over which nonuse must M3Id. §90.16.060 (Supp. 1961). 244 Wyo. Stat. Ann. § §41-47 to -53 (1957). 245 Yentzer v. Hemenway, 440 Pac. (2d) 7, 11, rehearing denied, 441 Pac. (2d) 320 (Wyo. 1968). See note 282 infra. Regarding administrative procedures and related matters, see "Establishment of Forfeiture: Administrative Procedures-Wyoming," infra. 246CaL Water Code § 1240 (West 1956); Nebr. ^Rev. Stat. §46-229 (1968). The California statute declares, as it did when enacted [Cal. Civ. Code §1411 (1872)]: "The appropriation must be for some useful or beneficial purpose, and when the appropriator or his successor in interest ceases to use it for such a purpose, the right ceases." The California courts agreed that one who has made an appropriation of water is not allowed to retain indefinitely as against other appropriators a right to the water while failing to apply it to some useful or beneficial purpose. Bazet v. Nugget Bar Placers, 211 Cal. 607, 296 Pac. 616 (1931); Duckworth v. Watsonville Water & Light Co., 150 CaL 520, 533-534, 89 Pac. 338 (1907). "Under the law of appropriation the right to the use of water lasts only so long and is effective only to such an extent as the actual use is exercised." Mt. Shasta Power Corp. v. McArthur, 109 Cal. App. 171, 192, 292 Pac. 549 (1930). For a discussion of beneficial use of appropriated water, see, in chapter 8, "Elements of the Appropriative Right-Measure of the Appropriative Right." In a statutory provision such as this, there is no guideline for determining what is cessation of a possessory right to divert and use water, and how it is to be evidenced. Unless administrative declarations are provided for, it is for the courts to determine, in litigated cases, under the facts and circumstances of each situation, whether or not cessation of a right has occurred. One such circumstance might be the unreasonableness of the length of time of nonuse, unexplained. Or the court might find that nonuse had prevailed for a period so long as to be unreasonable in relation to the requirements of other appropriators on the stream, with no evidence of any intent on the part of the appropriator to resume use of the water. From that there might result a presumption of |
