| OCR Text |
Show ABANDONMENT AND STATUTORY FORFEITURE 291 "Statutory Forfeiture," generally relates only to completed and perfected appropriative rights. Classification of statutes.-The State statutes relating to forfeitures and so-called abandonments generally pertain to nonuse of a water right for a specified period of years. Some also provide for administrative declarations of abandonment or forfeiture or both. A subsequent topic, "Abandonment and Forfeiture Distinguished," points out the fundamental differences between these two ways of losing appropriative rights and the extent to which some of the State statutes and court decisions have confused them. Prior to the adoption of California's Water Commission Act201-its first State administrative water rights statute-there was no statutory period resulting in forfeiture for nonuse. However, the State supreme court held that as 5 years was the period fixed by law for the ripening of an adverse possession into a prescriptive title, and was also the period declared by law after which a prescriptive right depending upon enjoyment was lost for nonuse, "for analogous reasons we consider it to be a. just and proper measure of time for the forfeiture of an appropriator's rights for a failure to use the water for a beneficial purpose."202 This 5-year period was replaced by a 3-year period in the Water Commission Act and its successor Water Code with respect to water of surface and subterranean watercourses appropriated under a State license or permit,203 but it is still in effect with respect to ground water not flowing in a known and definite channel.204 Statutory Provisions: By States In the following abstracts of State enactments, the provisions for administrative declarations are mentioned. Such provisions are discussed later under "Establishment of Forfeiture: Administrative Procedures." Note the varying use of the terms "abandonment" and "forfeiture" in these enactments. This is commented upon later under "Abandonment and Forfeiture Distinguished" and "Abandonment and Forfeiture Interrelated." Alaska.-If an appropriator voluntarily fails or neglects, without sufficient cause, to use all or part of his appropriated water for 5 successive years, the Commissioner of Natural Resources may declare an appropriation to be wholly or partially forfeited and shall revoke the certificate of appropriation.205 Arizona.-If the owner of a right to the use of water ceases or fails to use the appropriated water for 5 successive years, the right to the use 201 Cal. Stats. 1913, ch. 586. ^Smith v. Hawkins, 110 Cal. 122,126-127,42 Pac. 453 (1895). See also note 219 infra regarding Nebraska. 203 Cal. Water Code § 1241 (West 1956). 204Pasadena v.Alhambra, 33 Cal. (2d) 908,933-934, 207 Pac. (2d) 17 (1949). 205 Alaska Stat. § 46.15.140(b) (Supp. 1966). |
