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Show ABANDONMENT AND STATUTORY FORFEITURE 279 Some Other Aspects of the Doctrine Abandonment of part of water right .-"One who has acquired the right to use of certain waters may abandon the right to use of a portion thereof in the same manner as there may be an abandonment of the whole."145 Upon abandonment of the use of any part of the water to which an appropriative right attaches, that part becomes subject to new appropriation.146 A Colorado appropriator had a decree for 500 second-feet of floodwater. Later he built a reservoir in the stream channel, which made it impossible to use more than 90 second-feet of the priority. The Colorado Supreme Court held that the effect of this appropriator's voluntary act, which of necessity made it permanently impossible to use his entire decreed appropriation, was an abandonment. "We can conceive of no higher evidence of abandonment than this. It is nonuser coupled with the presumption of permanence, and proof of intent more persuasive than any mere oral declaration could possibly be. It is comparable to proof of a man's abandonment of his right hand by voluntarily cutting it off."147 Tenancy in common.-Several cases have come to the attention of the author involving abandonment of water rights held by tenants in common. An early mining ditch owned by several parties in Montana had been used for some years and then abandoned, one of the parties later recapturing a part of the water formerly used for mining and putting it to use for irrigating his land. The Montana Supreme Court held it to be well settled that one tenant in common might preserve the entire estate or right held in common, and that it would seem to follow that one tenant might preserve a part of the common estate or right but only, in the case of water rights, to such extent as he can beneficially use it.148 contention was made that the rights of ancient taro lands, claimed to have been aban- doned, had reverted by operation of law to the konohiki. The claim of abandonment was not sustained; but had it been upheld, the reversion necessarily would have been to the konohiki, against whom the ancient rights had been established. The waters of privately owned ahupuaas are in private-not public-ownership; hence in such case there would be no question of reversion to the public. iASAnson v. Arnett, 250 S.W. (2d) 450, 453 (Tex. Civ. App. 1952, error refused n.r.e.); accord, Affolter v. Rough & Ready Irrigating Ditch Co., 60 Colo. 519, 520, 524, 154 Pac. 738 (1916); Peterson v. Colorado River Water Conservation Dist., Ill Colo. 16, 24, 254 Pac. (2d) 422 (1953); Twin Falls Canal Co. v. Shippen, 46 Idaho 787, 791, 271 Pac. 578 (1928); Cundy v. Weber, 68 S. Dak. 214, 225-226, 300 N.W. 17 (1941). The court in the Anson case, supra, was dealing with Tex. Rev. Civ. Stat. Ann. art 7544 (1954) which provides for the loss of appropriative rights that are willfully abandoned during any 3 successive years. See also the subsequently enacted Tex. Rev. Civ. Stat. Ann. art. 7519a, § 2 (Supp. 1970), dealing with the loss of part of an appropriative right. The statutes are discussed at notes 336-347 infra. "'Smith v. Green, 109 Cal. 228, 235, 41 Pac. 1022 (1895). 147King v. Henrylyn Irr. Dist., 88 Colo. 8, 11-13, 291 Pac. 820 (1930). ^Meagher v.Hardenbrook, 11 Mont. 385, 390, 28 Pac. 451 (1891). |