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Show ABANDONMENT AND STATUTORY FORFEITURE 275 conveyance."115 But in the same year, the Oregon court held that a 99-year lease of the interests of co-owners of a ditch originally dug as a mining ditch, but from which some of the owners diverted small quantities of water for irrigation, was an abandonment of their irrigation rights. One owner who re- served his irrigation right was exempted from the determination.116 The Washington Supreme Court has said: "The mere failure to mention the water right specifically in deeds or leases is not evidence of abandonment, especially as it appears that the persons then in possession, even if not asserting title thereto, were using all of the water which flowed to the lands."117 Questions concerning oral conveyances of water rights are considered below. The Question of Oral Sale of an Appropriative Right In chapter 8, under "Property Characteristics-Conveyance of Title to Appropriative Right-Some Aspects of Conveyance of Appropriative Titles-Formalities of conveyance," there is mentioned the early fallacious concept that a transfer of appropriative title lacking all formalities operated as an abandonment of the water right. This matter was the subject of some controversy in California and Montana over a period of several decades. In Smith v. O'Hara, decided in 1872, the California Supreme Court held that the claimant of a ditch and of the water right exercised by its use could not connect himself with the water rights acquired by the persons who constructed the ditch except by deed. Oral testimony tending to prove the sale of the ditch by the builders was held properly stricken by the trial court.118 And yet, shortly thereafter in the same year, the supreme court held that an attempted sale of land which failed because of a fatal defect in the deed was not to be regarded as an abandonment by the grantor of possession of the premises. The court stated that the elements of an abandonment are quite different from those of a sale; that the failure of a transaction as a sale cannot convert it into an abandonment; and repeated a statement that had been made in two previous court opinions to the effect that there can be no such thing as abandonment to particular persons or for a consideration.119 The next move was in Montana, in which an appropriator of water by means of two ditches attempted to convey the ditches by unsealed and unacknowledged paper writings.120 This case, Barkley v. Tieleke, was frequently cited as holding that an attempt to transfer an appropriative right by an imperfect conveyance operates as an abandonment of the right. In fact, the Montana Supreme Court itself said later, with respect to Barkley v. Tieleke, 115 Watts v. Spencer, 51 Oreg. 262, 271, 94 Pac. 39 (1908). ll6Davisv. Chamberlain, 51 Oreg. 304, 312-313, 98 Pac. 154 (1908). 117Paysv.Roseburg, 123 Wash. 82, 85, 211 Pac. 750 (1923). UiSmith v. O'Hara, 43 Cal. 371, 376-377 (1872). li9McLeran v. Benton, 43 Cal. 467, 476 (1872). 120Barkley v. Tieleke, 2 Mont. 59, 62-65 (1874). |