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Show 260 LOSS OF WATER RIGHTS IN WATERCOURSES In a proceeding to change the point of diversion of water in Idaho, the question of abandonment of priority, as such, is held to be not generally before the court if a proper objection is made. Whether there has been an abandonment of the right or any portion of it is a matter to be settled in some other appropriate proceeding.18 However, while abandonment as such is not to be settled in an action involving a change in place of diversion, the reasons why the desired change will or will not injure other appropriators may be considered therein.19 Much litigation has reached the high courts of Colorado over proposed changes in points of diversion, pursuant to statutory authority and special court procedure, and in some of these cases questions of abandonment have arisen. It has long been settled in this State, according to the supreme court, that the diverting of water through a headgate located at a point other than that designated in the decree of adjudication does not constitute abandonment of the water right.20 And in an action for a decree authorizing a change in point of diversion of water decreed to a ditch, the Colorado Supreme Court observed:21 It may well be that there has been an abandonment of the original Ireland Ditch and the original point of diversion of the ditch. Certainly a change in the method or means of conveying appropriated water from the source of supply to the point of beneficial use is not evidence of abandonment. Likewise the unauthorized, unprotested, change of the point of diversion is not evidence of abandonment; on the other hand, it is evidence of nonabandonment. The distinction likewise applies logically to a reservior.22 And a water right is held not abandoned by simply changing the place of use to other lands.23 Distinguished from abandonment of particles of water. -Abandonment of a water right is to be distinguished likewise from abandonment of particles of water that have been released from possession. Inevitably, in the functioning of l6Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 791, 271 Pac. 578 (1928). 19First Security Bank of Blackfoot v. State, 49 Idaho 740, 745, 291 Pac. 1064 (1930). 20Graeser v. Haigler, 117 Colo. 197, 199, 185 Pac. (2d) 781 (1947). 2lLengelv. Davis, 141 Colo. 94, 347 Pac. (2d) 142 (1959). "Munson v. Schade, 79 Colo. 597, 598, 247 Pac. 454 (1926). This was an action to cancel a decree for, among other things, storage rights in a reservoir on the ground of abandon- ment. Said the supreme court, "The reservoir was a part of their general plan; the use of the water was another part, and while it requires strong evidence to show the abandon- ment of a valuable right, not less if not more does it require to show an abandonment of a valuable part of a system while the remainder is maintained." "Joyce v. Murphy Land & In. Co., 35 Idaho 549, 554, 208 Pac. 241 (1922); In re Johnson, Appeal from Department of Reclamation, 50 Idaho 573, 579, 300 Pac. 492 (1931); Harris v. Chapman, 51 Idaho 283, 296, 5 Pac. (2d) 733 (1931); Hawaiian Commercial & Sugar Co. v. Wailuku Sugar Co., 15 Haw. 675, 691 (1904); Hays v. Buzard, 31 Mont. 74, 80-81, 77 Pac. 423 (1904). |