OCR Text |
Show 630 EXERCISE OF THE APPROPRIATIVE RIGHT "It is immaterial, in acquiring the right, whether the water was taken from the river by means of a canal, ditch, flume, or pipe, or by any other method." And at any time after the right is acquired, the means of diversion as well as the point at which contact is made with the stream may be changed if no injury results to others.181 Effect of Change on Validity of Appropriation No abandonment or forfeiture. -In the course of development of the rule authorizing and restricting the right to make a change in point of diversion, attempts were made to obtain rulings that the making of such a change effected either an abandonment or a statutory forfeiture of the appropriation in question. So far as abandonment is concerned, such advocated concept overlooks the essential requirement of this way of losing an appropriative right-an intention to abandon it, that is, to forsake it completely. Here, of course, on trie contrary, intent is to continue full exercise of the right after taking the water from the stream at a different place. Nor does statutory forfeiture apply, provided there is no failure to use the water for the prescribed period of years, and the statute does not say that the water must continue to be diverted at the original place. On the contrary, most Western water rights statutes specifically authorize changes in point of diversion. Hence, there is no merit in the concept with respect to either abandonment or forfeiture.182 No effect on priority of right-In an early Colorado case, it was held that a change of point of diversion which effected, no change in quantity of water diverted, and injured no one, did not affect the right of priority of the water from a stream may not divide the appropriation provided it does not appear that by such division injury will result to others who have vested rights in such water." People's Ditch Co. v. Foothill Irr. Dist., 112 Cal. App. 273, 276-277, 297 Pac. 71 (1931, hearing denied by supreme court). iZlMttler & Lux v. Rickey, 127 Fed. 573, 584 (C.C.D. Nev. 1904). "Plaintiffs had the right to change this means of diversion of the waters to which they were entitled, since said change injured no one." Hand v. Clease,\202 Cal. 36, 45, 258 Pac. 1090 (1927). Anderson v.Baumgartner, 4 Cal. (2d) 195,196, 47 Pac. (2d) 724 (1935). "The right to use the water is the essence of appropriation; the means by which it is done are incidental." Offieldv. Ish, 21 Wash. 277, 281, 57 Pac. 809 (1899). Regarding the right of an evicted squatter on the public domain to change the point of diversion, see Hunter v. United States, 388 Fed. (2d) 148, 154-155 (9th Cir. 1967). 182Not abandonment: Anderson v. Baumgartner, 4 Cal. (2d) 195, 196, 47 Pac. (2d) 724 (1935); In re Deschutes River and Tributaries, 134 Oreg. 623, 639-640, 286 Pac. 563, 294 Pac. 1049 (1930); not statutory forfeiture: Van Tassel Real Estate & Live Stock Co. v. Cheyenne, 49 Wyo. 333, 350-351, 54 Pac. (2d) 906 (1936). See Ward County W. I. Dist. No. 3 v. Ward County Irr. Dist. No. 1, 237 S. W. 584, 588 (Tex. Civ. App. 1921), reformed and affirmed, 117 Tex. 10, 295 S. W. 917 (1927). Neither forfeiture nor abandonment: Graham v. Leek, 65 Idaho 279, 292,144 Pac. (2d) 475 (1943). |