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Show 270 LOSS OF WATER RIGHTS IN WATERCOURSES Some statements by Western State supreme courts are as follows: The nonuser of the ditch, or any part thereof, during that portion of the time that its use was prevented by circumstances over which the plaintiff had no control, is not evidence of abandonment of, or intention to abandon, such ditch. The prevention of its use by the defendant in any one year did not show any intention on the part of the plaintiff to abandon such ditch. The evidence all tends to rebut the idea of abandonment.83 Courts appreciate the necessity of requiring that water be beneficially used, because of its importance to the agricultural industry of the state. They will, however, take into consideration the circumstances of the particular case, and will not cause to be forfeited or taken away valuable rights when the non-use of water was occasioned by justifiable causes.84 In times of low water in a stream, or its tributaries, which is the common source of supply for many ditches, some will be unable to obtain their full share. If a failure of one diverting water from a stream to protest every time a shortage in his supply is occasioned by another withdrawing water to which he is not entitled, is to be construed as laches or acquiescence, amounting to an abandonment, priorities as determined under the statutes would be of little value.8S Use of water by trespasser. -An appropriator, by going on homestead land in an attempt to change the point of diversion and build a new ditch, did not thereby lose all prior right to the use of the water itself. "He certainly did not attempt to abandon his interest in the water."86 The Montana Supreme Court, which has held that a water right initiated in trespass is invalid, and that where it can only be exercised by committing a trespass it may not be asserted against the true owner of the land on which the trespass is committed, nevertheless said, "We know of no rule of law which provides for the enforced abandonment of a vested water right as a penalty for exercising it as a trespasser."87 Other circumstances regarding use and nonuse of water.-Findings of abandonment were denied in the following instances. (1) Nonuse without evidence of intent. "It is well settled that mere nonuser Blakely, 76 Mont. 1, 14-15, 245 Pac. 532 (1926); Federal Land Bank v¦. Morris, 112 Mont. 445, 453, 116 Pac. (2d) 1007 (1941); Hough v. Porter, 51 Oreg. 318, 435, 95 Pac. 732 (1908), 98 Pac. 1083, 102 Pac. 728 (1909). 83 Welch v. Garrett, 5 Idaho 639, 641, 51 Pac. 405 (1897). 84In re Manse Spring & Its Tributaries, 60 Nev. 280, 290-291, 108 Pac. (2d) 311 (1940). 85Lower Latham Ditch Co. v. Louden Irrigating Canal Co., 27 Colo. 267, 273-274, 60 Pac. 629 (1900). "McGuire v. Brown, 106 Cal. 660, 672, 39 Pac. 1060 (1895). 89 Omes Livestock Co. v. Warren, 103 Mont. 284, 295, 62 Pac. (2d) 206 (1936). |