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Show 276 LOSS OF WATER RIGHTS IN WATERCOURSES "The language of the territorial court in that case was, substantially, that where an appropriator of a water right transfers it by an imperfect or verbal conveyance he thereby abandons it, and his transferee in possession is to be regarded, not as a successor in interest, but only as an appropriator by recapture, and therefore as debarred from availing himself of the date of his predecessor's appropriation."121 In McDonald v. Lannen, the doctrine of Barkley v. Tieleke was disapproved of, if not actually overruled,122 in the following language:123 We cannot comprehend the logic of the language in Barkley v. Tieleke, which is claimed generally to hold, if it does, and the decision of the supreme court of California, rendered in 1872 (see Smith v. O'Hara, 43 Cal. 373), which does hold, that an appropriator of a water right by verbal transfer abandons it, and therefore divests his transferee, to whom he has honestly intended to surrender the property, of all rights of priority he himself acquired therein. The error seems to lie in the failure to properly distinguish in this connection the true sense of the word "abandon." The concept that an oral transfer of an appropriative right does not necessarily, of itself, operate as an abandonment of the right was further and firmly established in Montana in two subsequent decisions.124 In 1904, the California Supreme Court approved a statement to the effect that a verbal sale and transfer of his water right by a prior appropriator operates ipso facto as an abandonment of such right. It was proved in this case that an appropriator had made a verbal sale of his interest in a ditch and water, thereafter had made frequent declarations that he had no interest in such property, and much later by deed had transferred his land with appurtenances. The court held that it was competent for other claimants of water from the same source of supply to show that long before the deed of the appropriator and continuously for many years he had treated his right as abandoned, and that his verbal sale was admissible as tending to establish this fact.125 So far as has been ascertained, the California Court has had no occasion subsequently to specifically reexamine this question. The concept engendered in Smith v. O'Hara and Barkley v. Tieleke has been referred to in the supreme courts of several other States,126 but so far as the 121 McDonald v. Lannen, 19 Mont. 78, 84, 47 Pac. 648 (1897). In the meantime, in Middle Creek Ditch Co. v. Henry, 15 Mont. 558, 572-581, 39 Pac. 1054 (1895), the supreme court questioned the doctrine of Barkley v. Tieleke and held it inapplicable. 122 Wiel, S. C, "Water Rights in the Western States," 3d ed. vol. 1, § 555, p. 598 (1911). 123McDonald v. Lannen, 19 Mont. 78, 85-86, 47 Pac. 468 (1897). 124 Wood v. Lowney, 20 Mont. 273, 277-278, 50 Pac. 794 (1897); Featherman v. Hennessy, 42 Mont. 535, 539-540, 113 Pac. 751 (1911). l2SGriseza v. Terwilliger, 144 Cal. 456, 461-462, 77 Pac. 1034 (1904). l26Hindman v. Rizor, 21 Oreg. 112, 118-119, 27 Pac. 13 (1891); Watts v. Spencer, 51 Oreg. 262, 268-271, 94 Pac. 39 (1908); Smith v. North Canyon Water Co., 16 Utah |