OCR Text |
Show ABANDONMENT AND STATUTORY FORFEITURE 271 of water does not amount to abandonment, nor is mere lapse of time alone sufficient to establish an abandonment. In all cases abandonment is a question of intention."88 (2) On the other hand, "an expressed intention to abandon does not cause forfeiture of rights unless possession is relinquished and acts of ownership cease."89 (3) Temporary nonuse of water without intent to abandon.90 (4) Nonuse of water while laboring under uncertainties or disabilities.91 (5) Permissive use of water. "This being a permissive use, and in the nature of a gift, any idea of abandonment is immediately negatived."92 (6) Ample supply of available water. "When there is an abundance of [natural flow and storage] water in a stream being used by the different appropriators according to their adjudicated rights, one of such users would not lose or abandon his right by using any particular part of such waters."93 (7) Disposal of surplus water. Agreement between neighbors for the use of water flowing from each other's land, out of a supply that they both had been instrumental in bringing into the area, tended to show that it was not the intention of the parties to abandon the water supply that they had developed; and their actual use of the water for a beneficial purpose seemed conclusive of no abandonment. The fact that the surplus was allowed to flow into a pre- viously appropriated natural stream, from which one of the parties planned to divert it, was a circumstance to be considered, but it did not shift the burden of proving an abandonment from the party claiming an abandonment.94 (8) Release of water without intent to recapture. No part of one's right to appropriate water and store it in a reservoir for later use is abandoned by reason of releasing excess water from the reservoir and allowing it to flow away without intent to recapture.95 (9) Resumption of use of water. The resumption of use of the water in 1900 was held to be some evidence that the owners did not intend to abandon the appropriation by their failure to employ it from 1893.96 In a subsequent wEdgemont Impr. Co. v. N. S. Tubbs Sheep Co., 22 S. Dak. 142, 145, 115 N.W. 1130 (1908); accord, Smith v. Hope Mine Co., 18 Mont. 432, 438-439, 45 Pac. 632 (1896); State v. Oliver Bros., 119 Nebr. 302, 305, 228 N.W. 864 (1930); Promontory Ranch Co. v. Argile, 28 Utah 398, 407-408, 79 Pac. 47 (1904); Gill v. Malan, 29 Utah 431, 437, 82 Pac. 471 (1905); Thorp v.McBride, IS Wash. 466, 468-469, 135 Pac. 228 (1913). 89Rio Grande Res. & Ditch Co. v. Wagon Wheel Gap Improvement Co., 68 Colo. 437, 441, 191 Pac. 129 (1920). 90Land v. Johnston, 156 Cal. 253, 256,104 Pac. 449 (1909). 91 Uncertainties, EnterpriseIrr. Dist. v. Tri-State Land Co., 92 Nebr. 121, 152-153, 138 N.W. 171 (1912); disabilities, St. Onge v. Blakely, 76 Mont. 1, 14-15, 245 Pac. 532 (1926). 92Irion v. Hyde, 107 Mont. 84, 91, 81 Pac. (2d) 353 (1938). 93Masterson v. Kennard, 140 Oreg. 288, 294-295, 12 Pac. (2d) 560 (1932). 94Miller v. Wheeler, 54 Wash. 429, 435-436, 103 Pac. 641 (1909). 95 Vaughn v. Kolb, 130 Oreg. 506, 511, 513, 280 Pac. 518 (1929). 96 Thomas v. Ball, 66 Mont. 161,168, 213 Pac. 597 <1923). |