OCR Text |
Show 256 LOSS OF WATER RIGHTS IN WATERCOURSES preserved; and loss of contact with the stream by avulsion. Estoppel often may be involved in the grant of a riparian right to a nonriparian owner. These matters are discussed in chapter 10 under "The Riparian Right-Property Characteristics-Severance of Riparian Right from Land," and estoppel is further discussed later.4 Pueblo Right No method by which the pueblo water right can be lost to the municipality that succeeded a primitive Spanish or Mexican pueblo has yet been declared by the high courts of either California or New Mexico, the two States in which such rights have been adjudicated. On the contrary, the California Supreme Court has specifically ruled out some suggested ways in which the pueblo water right might be lost or impaired. These include nonuse and statutory forfeiture.5 No reported Western case in which an abandonment of a peublo right or its loss by prescription or estoppel was decreed has come to the attention of the author. Ancient Hawaiian Rights The ancient Hawaiian surface water rights may be lost by abandonment or by prescription. It is probable that the principles and limitations of estoppel would be applicable here, although actual losses of water rights by estoppel have not been adjudicated in cases that have come to the attention of the author. There is no provision in Hawaiian water law for loss of surface water rights by statutory forfeiture, which applies to appropriative rights in most Western States.6 ABANDONMENT AND STATUTORY FORFEITURE Abandonment 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. These provisions are discussed later under "Some Statutory Provisions," and a Washington statute relating to abandonment of a riparian right is noted immediately below under "Rights in Watercourses Subject to Abandonment." "See especially "Estoppel-Some Other Facets-Grant of Riparian Right," infra. \ 5 See, in chapter 11, "Pueblo Water Rights in California-Extent of the Pueblo Water Right-Superiority of the Pueblo Water Right-Preservation of the pueblo right." 6 See, in chapter 12, "Water Rights in Surface Watercourses-Some Aspects of the Ancient Hawaiian Surface Water Right." For a detailed discussion, see Hutchins, W. A., "The Hawaiian System of Water Rights" 140-143 (1946). |