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Show PRESCRIPTION 407 1903 and 1939? The uncertainty, according to the Utah Supreme Court in the 1943 Wellsville case, resulted from litigation in the 1937-1938 Hammond and Adams cases787 and the 1903 and subsequent 1939 legislation.788 So, to settle the question, the Utah court in the Wellsville case reverted to the Hammond case, in which it was held that the forfeiture statutes prior to 1939 did not apply to a situation in which failure to use water was the result of an unlawful diversion by another, and that title could therefore be acquired by adverse use.789 "We think that this attains a desirable result and conclude that title could between 1903 and 1939 be acquired by adverse possession. Implicit in this holding is the holding that adverse use will not work a statutory forfeiture.'" [Emphasis added.] 79° (5) Washington. The Washington statutes provide that "No rights to the use of surface or ground waters of the state affecting either appropriated or unappropriated waters thereof may be acquired by prescription or adverse use."791 Questionings. -(1) New Mexico. In 1937, the New Mexico Supreme Court, in referring to the testimony introduced in the trial in the lower court, said that the testimony did not prove an abandonment of the water right in question, "nor a prescriptive right (if such a right can be acquired under our law) * * * ,"792 781Hammond v. Johnson, 94 Utah 20, 66 Pac. (2d) 894 (1937), 75 Pac. (2d) 164 (1938); Adams v. Portage In., Res. & Power Co., 95 Utah 1, 72 Pac. (2d) 648 (1937), 81 Pac. (2d) 368 (1938). 788 Wellsville East Field Irr. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 456457, 462, 137 Pac. (2d) 634 (1943). 789In Hammond v. Johnson, 94 Utah 20, 33, 66 Pac. (2d) 984 (1937), 75 Pac. (2d) 164 (1938), the court had said inter alia: "It will thus be seen, both from the provisions of the statute and from the inherent nature of the terms and situations from which they arise that adverse possession is not founded upon or dependent on the doctrines of abandonment, or forfeiture for nonuser, of water rights. The state is interested in the matter of abandonment of water rights and nonuser thereof, because of the importance of water due to the arid conditions of the state. Abandonment and nonuser of water rights presupposes that such waters are thereby permitted to run to waste, to prevent which the state steps in and permits others, who will put the water to beneficial use, to do so. As long as water which has passed to private hands is put to a beneficial use, the state has no vital interest as to who the user is. That is, as long as the use granted and recognized by the state is exercised, the state has no interest in what may be the name of the person who exercises it. It follows, therefore, that notwithstanding the statute of appropriation, as between private claimants, water rights in Utah can be acquired by adverse user and possession." 790With respect to the distinction between prescription and statutory forfeiture, see also the discussion of In re Drainage Area of Bear River in Rich County, 12 Utah (2d) 1, 4-5, 361 Pac. (2d) 407 (1961), under "Prescription Distinguished from Other Methods of Loss," supra. 791 Wash. Rev. Code § 90.14.220 (Supp. 1970). 79iPioneer Irrigating Ditch Co. v. Blashek, 41 N. Mex. 99, 102, 64 Pac. (2d) 388 (1937). In Bounds v. Corner, 53 N. Mex. 234, 205 Pac. (2d) 216, 223 (1949), in response to the defendants' claim of a prescriptive right based on 10-years' use, the court said: |