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Show 266 LOSS OF WATER RIGHTS IN WATERCOURSES actually relinquishing possession, nor the relinquishment of possession without the intent to abandon the right, is sufficient. Establishment of Abandonment In 1902, the Idaho Supreme Court said, " [A] bandonment will not be presumed, but must be clearly established by the evidence."55 Question of fact.-"The issue of intent in such instance becomes a question of fact for determination by the trial court from all the pertinent facts and surrounding circumstances, and where supported by competent evidence such finding will not be disturbed on review."56 Elsewhere it is said that "Abandonment is a mixed question of law and fact."57 In several cases it is said that abandonment is a question of "fact and intent"58 or "a mixed question of intention and act."59 Evidence. -The fact that nonuse of water and want of possession constitute rebuttable evidence of intent to abandon the water right has been brought out earlier under "Essential Elements of Abandonment-Relation of nonuse to intent." If not rebutted, such evidence may be sufficient under certain circumstances to warrant the conclusion of the ultimate fact of abandonment. It must be remembered, said the Idaho Supreme Court, "that it requires very convincing and satisfactory proofs to support a forfeiture by abandon- ment of a real property right."60 Said a Texas court of civil appeals: "An essential element of abandonment is the intention to abandon and such intention must be shown by clear and satisfactory evidence. Abandonment may be shown by circumstances but the 475 (1915); Cundy v. Weber, 68 S. Dak. 214, 225, 300 N.W. 17 (1941); Hammond v. Johnson, 94 Utah 20, 31, 66 Pac. (2d) 894 (1937); Sander v. Bull, 76 Wash. 1, 6, 135 Pac. 489(1913). "Hallv.Blackman, 8 Idaho 272, 283, 68 Pac. 19 (1902). S6Knapp v. Colorado River Water Conservation Dist., 131 Colo. 42, 55, 279 Pac. (2d) 420 (1955); accord, Utt v. Frey, 106 Cal. 392, 397-398, 39 Pac. 807 (1895); facts and circumstances in the case to be examined, Haggin v. Saile, 23 Mont. 375, 381, 59 Pac. 154 (1899); "The question of abandonment is one of fact to be determined in each case from all the evidence in the record," Anson v. Arnett, 250 S.W. (2d) 450, 454 (Tex. Civ. App. 1952, error refused n.r.e.); "It is well settled that the question of abandonment is to be determined by the conduct of the parties, and is a question of fact for the trial court," Barton v. Pierce, 131 Cal. App. 33, 37, 20 Pac. (2d) 736 (1933); abandonment of a water right and water works depends upon the facts in each case, Landers v. Joerger, 15 Ariz. 480, 484,140 Pac. 209 (1914). 57Farmers' Irr. Dist. v. Frank, 72 Nebr. 136, 154, 100 N.W. 286 (1904). 5SWendler v. Woodward, 93 Wash. 684, 688, 161 Pac. 1043 (1916); Carter v. Territory of Hawaii, 24 Haw. 47, 55 (1917); McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, 337 (1907). 59Gassert v. Noyes, 18 Mont. 216, 219, 44 Pac. 959 (1896). 60Perry v. Reynolds, 63 Idaho 457, 464, 122 Pac. (2d) 508 (1942). This statement apparently applies both to statutory forfeiture and genuine abandonment of appropria- tive rights. |