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Show 280 LOSS OF WATER RIGHTS IN WATERCOURSES The Colorado Supreme Court held that water decreed to a ditch owned by tenants in common is not abandoned by reason of the failure of one of them to use his share, if it is used by other tenants in common for a beneficial purpose. This applies to a mutual irrigation company, to which the water rights of the tenants in common have been transferred in exchange for shares of capital stock.149 The Idaho Supreme Court declared that the law presumes that the possession of one co-tenant is the possession of them all, and that no presumption of abandonment arises in such cases. Water was annually diverted and impounded in a reservoir pursuant to appropriations made by several parties, who were held to be co-tenants in the reservoir and the impounded water. Destruction of the flume of one co-tenant led to several years' failure to use his share of the impounded water, but much of it was used by one of the others. The supreme court rejected a claim by the latter that this co-tenant had abandoned his water right.150 In a 1951 case, the Colorado Supreme Court declared that "Each of several water appropriators using a ditch in common may separately abandon his right thereto, and injury to one by virtue of the other's abandonment of all or part of the ditch by change of point of diversion or of place of use is not an actionable injury."151 Abandonment of adjudicated water right -Whether or not a water right has been adjudicated does not determine its potentiality for abandonment. It has been long recognized that an appropriative right may be abandoned after its adjudication as well as before.152 However, declared the Colorado Supreme Court, "Evidence of abandonment must, of course, be of facts which occur after the decree which awards the priorities, but previous conditions, declarations of the parties and the proceedings in the suit of which that decree is the result, are competent to show conditions and intent subsequent to the decree."153 Another pertinent comment by this court in a 1953 case was that, "True, as plaintiff urges, even rights so adjudicated may be lost by abandonment, but, in such case, the priority abandoned does not continue and go to another by virtue of his use of the water; rather, the right itself ceases to 149 Cache la Poudre Irrigating Co. v. Larimer & Weld Res. Co., 25 Colo. 144, 153, 53 Pac. 318(1898). 150 Washington County In. Dist. v. Talboy, 55 Idaho 382, 393, 43 Pac. (2d) 943 (1935). The court held that actual diversion and impounding of the water each year demon- strated that the water right had not been abandoned, and no other appropriator was contesting the right of the reservoir owners to divert and impound the water. 151 Brighton Ditch Co. v. Englewood, 124 Colo. 366, 373, 237 Pac. (2d) 116 (1951). 152 See St. John Irrigating Co. v. Danforth, 50 Idaho 513, 516, 298 Pac. 365 (1931). See also State v. Hidalgo County Water Control & Improvement Dist. No. 18, 443 S.W. (2d) 728, 761 (Tex. Civ. App. 1969, error refused n.r.e.). 153 Colorado Springs v. Yust, 126 Colo. 289, 293, 249 Pac. (2d) 151 (1952). See Peterson v. Colorado River Water Conservation Dist., 127 Colo. 16, 24, 254 Pac. (2d) 422 (1953). |