| OCR Text |
Show ABANDONMENT AND STATUTORY FORFEITURE 259 means to discontinue, desert, relinquish, surrender, vacate or give up. Its opposite is to occupy, keep, maintain, use, preserve and protect. In water and irrigation matters it has no special, mystical or different meaning than that well and generally recognized in all instances where are involved legal rights, the preservation and continuation of which are dependent upon possession, use or occupancy. That the life of such right terminates and that it goes completely out of existence upon abandonment, is a principle so well recognized that citation of authority to support it is unnecessary. In the absence of expressed declaration, the difficult question for determination is whether, at any time following its acquisition, the owner of the right decided to quit, surrender or give it up. * * * * * * * Decisions of courts of last resort are legion in support of the firmly recognized principle that where a water right is not used for an unreasonable period of time, intent to abandon it may be implied. Distinguished from abandonment of facilities.- Abandonment of a water right is to be distinguished from abandonment of any particular facilities for diverting and conveying the water in the exercise of such right. This applies, for example, to the discarding of an old or dilapidated flume. "The substantive right is the right of diversion and use of the water; the flume is a mere means of conveying the water."15 In an early case the Colorado Supreme Court stated that: "It may be that plaintiff had abandoned a portion of his original ditches, yet it would seem, from this finding, that he had not abandoned his water rights. A distinction must be observed between the abandonment of an irrigating ditch and the abandonment of the right to the use of water for irrigation."16 The same principles apply to abandonment of an appropriator's point of diversion. Where water is put to continuous beneficial use by the holder of a water right, the appropriation is not abandoned, even though the point and method of diversion are changed.17 IS Wood v. Etiwanda Water Co., 147 Cal. 228, 233, 81 Pac. 512 (1905). As a ditch and the water right associated therewith are separate species of property, the ditch may be abandoned and the water used through another ditch without abandoning the water fight. In re Johnson, Appeal from Department of Reclamation, 50 Idaho 573, 579, 300 Pac. 492 (1931). Kleinschmidt v. Greiser, 14 Mont. 484, 495, 37 Pac. 5 (1894). Nor does an abandonment of a water right, of itself, operate as abandonment of a claim to a ditch right. McDonnell v. Huffine, 44 Mont. 411, 423, 120 Pac. 792 (1912). 16Nichols v. Mclntosh, 19 Colo. 22, 28, 34 Pac. 278 (1893). See Greerv. Heiser, 16 Colo. 306, 314, 26 Pac. 770 (1891); Boulder & Larimer County Co. v. Culver, 63 Colo. 32, 33-35, 164 Pac. 510 (1917); Stoner v. Mau, 11 Wyo. 366, 395-396, 72 Pac. 193 (1903); Malnati v. Ramstead, 50 Wash. (2d) 105, 109, 309 Pac. (2d) 754 (1957), but compare the facts in the earlier decision in Hunter Land Co. v. Laugenour, 140 Wash. 558, 567, 250 Pac. 41 (1926). "Anderson v. Baumgartner, 4 Cal. (2d) 195, 196, 47 Pac. (2d) 724 (1935). SezMcGuire v. Brown, 106 Cal. 660, 672, 39 Pac. 1060 (1895). |
