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Show WASTE, SEEPAGE, AND RETURN WATERS 583 court said, "It is axiomatic that no appropriator can compel any other appropriator to continue the waste of water whereby the former may benefit."94 Some other situations.-Where the irrigator himself, or the irrigation project attempts to recapture the water, particularly after it has entered a watercourse, and therefore claims that the water has not been abandoned, a more difficult question is presented. In some jurisdictions the question of abandonment is immaterial. Elsewhere it is material and the question of intention becomes important.95 The Oregon Supreme Court said that in order to retain title to excess water discharged into a stream, the intent must exist at the time the increment to the stream is produced, not to abandon it but on the contrary to reclaim it, and that the intent must be carried out within a reasonable time.96 The Wyoming Supreme Court held that a city had no further rights to the use of its sewage after allowing it to discharge directly into a stream from which the city derived its water supply under a prior appropriative right, as against a downstream appropriator; but that the city might discharge sewage into an irrigation ditch, under contract with the owner of the ditch, over the protest of a lower appropriator, because otherwise the city might be hampered in its problem of sewage disposal.97 On the other hand, the United States Supreme Court recognized the right of a Federal project in Wyoming to recapture and reuse return waters within its boundaries.98 In a Federal case arising in Idaho, the district court upheld the right of the Government, where it had not abandoned return flow and could identify it, to commingle it with other waters in a natural channel and convey it thence to a place of use.99 A Federal decision in a case arising in Nebraska upheld the right of a Federal project, as against a company which was attempting to establish an ineffectual appropriation, to recapture seepage water on its way to the North Platte River and to deliver it to one under contract with the United States in lieu of storage water or direct flow.100 In one of its earliest decisions, the Montana Supreme Court declared that water released by an appropriator without any intention of recapture, after having been used and having answered his purposes, thereby becomes publici "Application of Boyer, 73 Idaho 152, 162-163, 248 Pac. (2d) 540 (1952). ^ These and other cases are discussed in chapter 9 at note 221. <§>Jones v. WarmspringsIn. Dist., 162 Oreg. 186, 91 Pac. (2d) 542 (1939). 96162Oreg. at 197. 91Wyoming Hereford Ranch v. Hammond Packing Co., 33 Wyo. 14, 236 Pac. 764 (1925). 9SIde v. United States, 263 U.S. 497 (1924). 99 United States v. Haga, 276 Fed. 41 (D. Idaho 1921). i00Ramshorn Ditch Co. v. United States, 269 Fed. 80 (8th Cir. 1920), affirming 254 Fed. 842 (D. Nebr. 1918). |