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Show ABANDONMENT AND STATUTORY FORFEITURE 261 an irrigation system, some of the water diverted from the source of supply returns to a stream channel through natural percolation or artificial ditches or wasteways, for in actual practice complete use of all water applied to the land is seldom attainable. The portions of the water reduced to private possession and thereafter released into the stream, without intent to recapture, are thereby abandoned; but that obviously is not an abandonment of the original water right or of any part of it. This situation is illustrated by decisions in two cases, with different sets of facts, both of which are discussed in chapter 18. In one of these, an Oregon case, surplus water had been released by a city from reservoirs with no intention of reclaiming it and allowed to reach the natural level of the country. The Oregon Supreme Court, in holding that the city appropriator had no further interest in such water after its release and could confer no right upon anyone to its use, specifically referred to such overflow water as "released" or "waste" water in order not to confound or connect the word "abandoned" with the actual water right of the city. The court distinguished the abandonment of specific parcels of the water, which had flowed out of the reservoirs, from abandonment of a water right, by saying that "Water which is taken into possession and confinement becomes personal property and only specific quantities may be abandoned. * * * The City of Baker has absolute control of the water in its reservoirs. The city has abandoned no water right."24 The other is a California case. With respect to waters brought into an area from another watershed, reduced to possession, and put to use, the surplus thereafter being allowed to drain into a natural watercourse, the California Supreme Court held that such waters were private property during the period of possession, and:25 When possession of the actual water, or corpus, has been relinquished, or lost by discharge without intent to recapture, property in it ceases. This is not the abandonment of a water right, but merely an abandonment of specific portions of water, i.e., the very particles which are discharged or have escaped from control. It was held in this case that there had been no abandonment of a water right by the importer of the water-only an abandonment of those portions of the foreign water which had actually been permitted to drain into the watercourse and thence out of the irrigated area. Essential Elements of Abandonment Abandonment is a voluntary matter.26 After an appropriation of water has 24 Vaughn v. Kolb, 130 Oreg. 506, 512-513, 280 Pac. 518 (1929). 25 Stevens v. Oakdale Irr. Dist, 13 Cal. (2d) 343, 350, 90 Pac. (2d) 58 (1939). 26 "An abandonment must always be voluntary," Morris v. Bean, 146 Fed. 423, 434 (C.C.D. Mont. 1906); St. Onge v. Blakely, 76 Mont. 1, 14, 245 Pac. 532 (1926); Osnes Livestock Co. v. Warren, 103 Mont. 284, 294, 62 Pac. (2d) 206 (1936); Hawaiian |
