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Show 282 LOSS OF WATER RIGHTS IN WATERCOURSES statutory procedure of the majority of Western States, is an inchoate appropriative right. Because of the nature of these formal procedures, questions of abandonment of such an inchoate right probably seldom arise. For example, the California Water Code provides that if the work authorized by a permit is not commenced, prosecuted, and completed or the water applied to beneficial use as contemplated in the permit and in accordance with the statute "and the rules and regulations" of the State Water Resources Control Board, the latter (after a hearing) may revoke the permit and declare the water subject to further appropriation.159 The rules and regulations of the Board provide that "Prior to issuance of license, annual progress reports shall be filed promptly by permittee upon forms which will be provided by the board."160 If a permittee should actually abandon his project by relinquishing possession with the intention of never resuming it, the Board presumably would be alerted by the failure to receive an annual report-or by a protest from some interested party-to the need for an investigation and a decision as to revoking the permit. In this statutory proceeding, then, the inchoate right evidenced by the permit would end with the permit's revocation, not with the act of abandonment.161 Abandonment by municipality .-The city of Cheyenne at the time of its decree was diverting 9 second-feet of water through a ditch, which was subsequently abandoned and the water diverted instead through pipelines. It was contended that the city had abandoned by nonuse the 9 second-feet of water formerly carried by the city ditch. "Counsel for the city contend that in order to find that this water was abandoned, an intent to abandon must be shown, and that this has not been done in this case. We agree that no such intent has been shown, and that it is necessary to be shown in the ordinary case, in order to prove abandonment." Furthermore, nonuse of a particular ditch or other conveyance is distinguished from nonuse of the water formerly carried in it.162 In a condemnation suit in Texas, to which the City of Corpus Christi was not a party, the jury found that this city had abandoned most of its right to the waters of Nueces River under a permit from the State Board of Water Engineers. The court of civil appeals expressed grave doubts as to the sufficiency of the evidence to support the jury's finding of abandonment. Nor did it seem to the court that the failure of the city to make immediate use of all the water specified in the permit would support the hypothesis of "willful abandonment" of the water right. "A city may be reasonably expected to grow 159 Cal. Water Code § 1410 (West Supp. 1970). 160 Cal. Admin. Code, tit. 23, §782 (1969). '"Compare Rocky Ford In. Co. v. Kents Lake Res. Co., 104 Utah 216, 220-221, 140 Pac. (2d) 638 (1943). 162 Van Tassel Real Estate & Live Stock Co. v. Cheyenne, 49 Wyo. 333, 349, 54 Pac. (2d) 906 (1936). |
