OCR Text |
Show 274 LOSS OF WATER RIGHTS IN WATERCOURSES (3) Purpose of use. In an early case, the California Supreme Court stated that the mere fact that an appropriator, who had a right to use water in sawing timber, chose to apply the water to grinding wheat, was no abandonment of his title to the water right, but that the question had not been so made on the record as to require a decision on that point.109 (4) Conduit. A change in the method or means of conveying appropriated water from the source of supply to the place of beneficial use is not evidence of abandonment.110 The same principle applies to a change in location of a waste ditch.111 Conveyance of title to water right.-In the early California litigation respecting transfers of possessory rights in lands and mining claims, it was sometimes contended that such a transfer operated as an abandonment of the possessory right. The supreme court rejected such contentions on the ground that "The elements of an abandonment are quite different from those of a sale; and where for any reason a transaction fails, as a sale, it cannot be converted into an abandonment. There is no such thing as an abandonment to particular persons, or for a consideration."112 This statement of the California court was repeated by the Montana Supreme Court, which added: "In the case at bar the evidence is that the parties did not intend to abandon the use of the water which they had appropriated. Their acts indicated precisely the contrary intention. They conveyed, by an instrument in writing sufficient for the purpose, the use of the water for a valuable consideration. This is not an abandonment."113 In fact, in one of the earliest Montana water rights decisions, which was affirmed by the U.S. Supreme Court in a landmark decision, the Territorial supreme court stated that "There was no abandonment of the ditch within the meaning of the law, for when the work was suspended there was no intention to abandon, and the subsequent sale for a valuable consideration showed the property to be valuable, and there was, in fact, no abandonment of possession."114 The Oregon Supreme Court also followed the California statement, repeated in Montana, and held that, in the case at bar, the acts of the appropriator indicated no intention of abandoning the use of his water. "He sold his title for a consideration, surrendered possession, and agreed to make a proper 109McDonald v. Bear River & Auburn Water & Min. Co., 13 Cal. 220, 236-237 (1859). u0Lengel v. Davis, 141 Colo. 94, 347 Pac. (2d) 142 (1959);Stoner v.Mau, 11 Wyo. 366, 395-396, 72 Pac. 193 (1903). 111 Schumacher v. Brand, 72 Wash. 543, 546-547, 130 Pac. 1145 (1913). ll2McLeran v. Benton, 43 Cal. 467, 476 (1872); accord, Stephens v¦. Mansfield, 11 Cal. 363, 365-366 (1858);Richardson v. McNulty, 24 Cal. 339, 344-345 (1864). u3Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 576-577, 39 Pac. 1054 (1895); accord, Norman v. Corbley, 32 Mont. 195, 203, 79 Pac. 1059 (1905). The sale of a water right for a valuable consideration in 1909 was held to be some evidence that the right was not abandoned in 1905. Thomas v. Ball, 66 Mont. 161, 168, 213 Pac. 597 (1923). U4Atchison v. Peterson, 1 Mont. 561, 565 (1872), affirmed, 87 U.S. 507 (1874). |