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Show 258 LOSS OF WATER RIGHTS IN WATERCOURSES revert to the state, and the waters affected by said right shall become available for appropriation. . . ,"12 The legislation has not been construed by the Washington Supreme Court. Abandonment Defined Late in the 19th century the California Supreme Court defined the abandonment of an appropriative right and, in doing so, stated principles that have been restated and applied in a number of succeeding cases in various Western States:13 The right which is acquired to the use of water by appropriation may be lost by abandonment. To abandon such right is to relinquish possession thereof without any present intention to repossess. To constitute such abandonment, there must be a concurrence of act and intent, viz., the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and the intention of not returning. * * * The mere inten- tion to abandon, if not coupled with yielding up possession or a cessation of user, is not sufficient; nor will the nonuser alone without an intention to abandon be held to amount to an abandonment. Abandonment is a question of fact to be determined by a jury or the court sitting as such. Yielding up possession and nonuser is evidence of abandonment, and under many circum- stances sufficient to warrant the deduction of the ultimate fact of abandonment. But it may be rebutted by any evidence which shows that, notwithstanding such nonuser or want of possession, the owner did not intend to abandon. A 1955 analysis by the Colorado Supreme Court is thus phrased, in part:14 In common usage to abandon means to forsake; give up wholly; quit; when applied to a possessory right, such as is a water right, it 12Wash. Rev. Code §90.14.170 (Supp. 1970). Sections 90.14.160 and 90.14.180 (provid- ing for abandonment of appropriations authorized by the legislature prior to enactment of Laws 1917, ch. 117, or by custom or general adjudication, or appropriations by any "person hereafter [after July 1, 1967] entitled to divert or withdraw waters of the state . . . authorized under" the pertinent statutes) are noted under "Some Statutory Provisions," infra. The other portions of these three statutes are noted in the subtopics "Rights Subject to Forfeiture-Generally not riparian rights" and "Statutory Provisions: By States-Washington" under "Statutory Forfeiture," infra. 13 Utt v. Frey, 106 Cal. 392, 397-398, 39 Pac. 807 (1895). In the following year a Federal court approved an almost identical instruction to the jury. Integral Quicksilver Min. Co. v.Altoona Quicksilver Min. Co., 75 Fed. 379, 380-381 (9th Cir. 1896). See also Anson v. Arnett, 250 S.W. (2d) 450, 454 (Tex. Civ. App. 1952, error refused n.r.e.);Hammond v. Johnson, 94 Utah 20, 31, 66 Pac. (2d) 894 (1937). iAKnapp, v. Colorado River Water Conservation Dist., 131 Colo. 42, 53-54, 279 Pac. (2d) 420 (1955). For some other summaries of principles, see Mason v. Hills Land & Cattle Co., 119 Colo. 404, 408-409, 204 Pac. (2d) 153 (1949); In re Willow Creek, 74 Oreg. 592, 641-642, 664, 144 Pac. 505 (1914), 146 Pac. 475 (1915). |