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Show 626 OTHER WATERS AT THE SURFACE unappropriated public waters may be acquired only by first applying to the State Engineer for a permit to make such appropriation.331 Loss of spring water rights. -(1) Prescription. Originally, the right to the use of spring water in Utah could be lost by prescription.332 In 1939, however, one of the amendments to the State water rights statutes provided that: "No right to the use of water either appropriated or unappropriated can be acquired by adverse use or adverse possession." 333 (2) Statutory forfeiture. An appropriator of spring water who fails to exercise his right for the 5-year period prescribed by the statute334 forfeits his right by his nonuse. This concept is based upon the physical nonuse of the water, and it does not require any intent on the part of the owner to forsake his right.335 (3) Abandonment. In order to find that the owner has abandoned his right to use spring waters, it must be demonstrated that in addition to nonuse of the water there was an intent to relinquish the right.336 The party who asserts that a right has been abandoned has the burden of proving that there was in fact an intentional abandonment.337 (4) Estoppel. A party is estopped to assert that he has rights to a spring where he stands by while another, through considerable expense and labor, develops the flow of the spring. "It is elementary that he who fails to assert his alleged rights, when in good faith he should have done so, is estopped from afterwards asserting the same." 338 Washington Statutes.-Subject to existing rights, all waters within the State belong to the public, and any right thereto or to the use thereof may be acquired only by appropriation for a beneficial use in the manner provided by the statute and not otherwise.339 A statute enacted in 1890,340 and repealed in the enactment of the water code in 1917,341 had provided that ditches for the utilization of waste, seepage, and spring waters should be governed by the same laws as .hose 331 Utah Laws 1935, ch. 105, Code Ann. § § 73-1-1 and 73-3-1 (1968). 332Hammond v. Johnson, 94 Utah 20, 34, 66 Pac. (2d) 894 (1931); Adams v. Portage In., Res. & Power Co., 95 Utah 1, 72 Pac. (2d) 648 (1937). 333 Utah Code Ann. § 73-3-1 (1968). 334Id. § 73-1-4. 33SDeseret Live Stock Co. v. Hooppiania, 66 Utah 25, 23~9 Pac. 479 (1925). 3ii'Promontory Ranch Co. v. Argile, 28 Utah 398, 407, 79 Pac. 47 (1904); Gill v.Malan, 29 Utah 431, 82 Pac. 471 (1905). 331Dalton v. Wadley, 11 Utah (2d) 84, 355 Pac. (2d) 69 (1960). 33«OrientMin. Co. v¦. Freckelton, 27 Utah 125, 74 Pac. 652 (1903). 339Wash. Rev. Code § 90.03.010 (Supp. 1961). 340 Wash. Laws 1889-90, § 15, p. 710. 341 Wash. Laws 1917, ch. 117, § 47, p. 468. |