OCR Text |
Show ABANDONMENT AND STATUTORY FORFEITURE 299 occur is of assistance in determining whether or not the right is forfeited. If the unused right is exercised before the expiration of the stated period, the right is not forfeited. If not so resumed, then cessation of the right may occur upon termination of the period. Unless administrative declarations are provided for, as shown below,247 it is for the courts to determine from the evidence whether forfeiture has occurred and, if decided in the affirmative, to carry out the legislative declaration of principle. The advantage that may inhere in these statutes is most pronounced when the court takes into consideration the distinctions between abandonment and statutory forfeiture. When it fails to do so, and on the contrary confuses them to the extent of requiring an intent to abandon the right to coincide with nonuse for the statutory period, which has occurred, complications may ensue.248 In providing for cessation of the appropriative right because of nonuse for specified periods of years, some statutes say "successive" years and others do not. However, in the laws that speak of "periods" of years or simply "years," there is nothing to indicate that the years need not necessarily be consecutive. A parallel situation is the State statute of limitation in the law of adverse possession. If not specifically stated in the forfeiture period for nonuse of water, continuance-unbroken succession-of years of nonuse up to the statutory number would seem to be necessarily implied.249 In the States in which the forfeiture statute stops with designation of the controlling term of years of nonuse and makes no exceptions on account of extenuating circumstances, computation of the forfeiture period may present little or no difficulty, provided of course that convincing proof of nonuse for the entire period is presented. In a proven case, the forfeiture period would normally begin with the first year of nonuse250 and may end with the last year prescribed by the statute, whereupon forfeiture would become effective. However, some high courts in the West expressed disfavor with the view that intention to abandon the right, whereupon the decision could be based on the principles of abandonment. 247A number of States have statutes providing administrative procedures for declaring forfeitures. See "Establishment of Forfeiture: Administrative Procedures," infra. 248 See "Abandonment and Forfeiture Distinguished," infra. 249 For example, the Utah statute provided inter alia with respect to forfeiture in 1943, as it still does [Utah Code Ann. §73-1-4 (1968)], that when the holder of an appropria- tive right "shall abandon or cease to use water for a period of five years the right shall cease, and thereupon such water shall revert to the public." Although neither the word "continuous" nor "successive" was then or is now included in this legislative declara- tion, the Utah Supreme Court held in that year that statutory forfeiture requires a continuous 5-year period during which failure to make use of water takes place. In this case, beneficial use during 1 year in the 5-year period was held to prevent the applica- tion of the statute. Rocky Ford In. Co. v. Kents Lake Res. Co., 104 Utah 216, 218, 140 Pac. (2d) 638 (1943). JS0The forfeiture period begins at the time the appropriator fails or ceases to apply the water to a beneficial use. Albrethsen v. Wood River Land Co., 40 Idaho 49, 68, 231 Pac. 418 (1924); CMl v. Jarvis, 50 Idaho 531, 536-537, 298 Pac. 373 (1931). |