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Show THE RIPARIAN RIGHT 45 Washington legislation enacted in 1967, providing for abandonment and forfeiture of riparian rights, is discussed in the succeeding subtopic. (2) Question of statutory forfeiture. The statutes of a large majority of the Western States prescribe periods of years during which failure to exercise an appropriative water right subjects the right to loss by forfeiture. These provisions generally pertain solely to appropriative rights. Time is of the essence of a statutory forfeiture; intent to forego the right, or to retain title to it despite nonuse, generally has no bearing on this forfeiture process. See, in chapter 14, "Abandonment and Statutory Forfeiture-Abandonment and Forfeiture Distinguished." The South Dakota court held in 1913 that the forfeiture provision in an early water administration act231-which provided that "when the party entitled to the use of water" failed to beneficially use all or any portion' of the waters that he claimed for a period of 3 years, such unused waters reverted to the public-was "void as to a riparian owner but valid as to one who is no more than an appropriator without riparian right. A riparian right to use such waters of a flowing stream cannot be lost by disuse."232 In Belle Fourche Irrigation District v. Smiley, upholding the validity of 1955 South Dakota legislation which, among other things, undertook to eliminate both unused riparian rights existing at the time of enactment and the future acquisition of riparian rights for nondomestic purposes as against appropriative rights, the South Dakota Supreme Court noted generally that in the 1913 case, "The act there considered contained no provisions comparable to existing statutory provisions defining, determining and protecting vested rights... ."233 This 1955 legislation also included a reenacted forfeiture provision, not considered in the Belle Fourche case, which expressly applies only to "appropriated water."234 The California Legislature's one attempt to subject the riparian right to forfeiture for failure to exercise the right was frowned upon by the courts and finally declared unconstitutional. The original water appropriation act of 1913 contained a provision to the effect that nonapplication of water to riparian land for any continuous period of 10 years after passage of the act should be conclusive presumption that the water was not needed thereon for any useful or beneficial purpose, such water thereupon being subject to appropriation.235 After three decisions in which the California Supreme Court took an unfavorable view of this provision,236 the constitutional amendment of 1928 231S. Dak. Laws 1907, ch. 180, § 46. 232St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 268, 143 N.W. 124 (1913). 333Belle Fourche In. Dist. v. Smiley, 176 N.W. (2d) 239, 244, 245 (S. Dak. 1970). The 1955 legislation is discussed at notes 491-492 infra. 234 S. Dak. Comp. Laws Ann. § 46-5-37 (1967). 23SCal.Stat. 1913, ch. 586, § 11. 236Herminghaus v. Southern Cal Edison Co., 200 Cal. 81, 115-116, 252 Pac. 607 (1926); Scott v. Fruit Growers' Supply Co., 202 Cal. 47, 54, 258 Pac. 1095 (1927) |