OCR Text |
Show ABANDONMENT AND STATUTORY FORFEITURE 25 7 Rights in Watercourses Subject to Abandonment Appropriative rights and ancient Hawaiian water rights may be lost by abandonment.7 Regarding riparian rights, in each of three cases decided early in the 20th century, the South Dakota Supreme Court made a statement to the effect that the riparian proprietor's right does not depend upon use, but is an incident of ownership, a part of the land itself, which can be lost only by "adverse prescriptive right, grant, or actual abandonment." [Emphasis added.] 8 However, a loss of riparian rights by abandonment has not been actually decreed in any reported Western court decision that has come to the attention of the author. Wiel's positive conclusion is:9 Riparian rights cannot be lost by abandonment, wherein they differ in an essential element from appropriations. The latter depend on continued beneficial use; but in the riparian right, future possible use stands as high as actual present use. Riparian rights remain both against other riparian owners and against nonriparian owners, though the water is put to no use at all.10 In a 1902 California case, claimants under a grant of part of a riparian tract of land in California, which grant contained a reservation of enough water to operate a hydraulic ram, contended that all rights under the reservation had been lost by abandonment and adverse use. The fact that the grantor's successor in interest abandoned the use of the hydraulic ram in favor of other means of use was not deemed material by the supreme court, because his right to the use of the water did not cease when he ceased to operate the ram. "As a riparian owner he is not bound to use the water, or, in case of non-user, lose his right to its use."11 This decision thus supports the principle, discussed below, that abandonment of a water right is to be distinguished from abandonment of material objects. Washington legislation enacted in 1967 provides that "Any person entitled to divert or withdraw waters of the state by virtue of his ownership of land abutting a stream, lake, or watercourse, who abandons the same .. . shall relinquish such right or portion thereof, and such right or portion thereof shall 'Regarding the loss of prescriptive water rights by abandonment, see "Prescription-Loss of Prescriptive Rights," infra. *Stenger v. Tharp, 17 S. Dak. 13, 23-24, 94 N.W. 402 (1903); Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 487, 128 N.W. 702 (1910); Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 203-204, 130 N.W. 85 (1911). 9Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § 861 (1911). 10 Most of Wiel's discussion in this section has to do with nonuse of the water by the riparian owner, which in itself is no abandonment as will be shown later. He does not go into the element of intent, which in discussing abandonment of appropriative rights he emphasizes so clearly as a necessary element of such abandonment. Id. §567. If neces- sary in the one case, it should be in the other. \. 11 Walker v. Lillingston, 137 Cal. 401, 403-404, 70 Pac. 282 (1902). |