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Show UTAH 755 Loss of Water Rights Statutory forfeiture.-The statutory provision section 73-14 providing for forfeiture of a water right upon 5 years' nonuse437 is applicable to all appropri- ated water, without regard to the source of supply. The Utah court has held that the running of the forfeiture statute subsequent to 1949 was interrupted when the owner of a right to ground water was prevented by a legal barrier from using the water.438 Abandonment.-Abandonment is a distinct concept from forfeiture. In addition to nonuse of water, there must also be an intent to relinguish the right. A finding of abandonment requires proof of an intent to aban- don;439 the burden of proof is upon the party alleging an abandonment to demonstrate that the water user has in fact intentionally abandoned the water.440 Colo. 458, 366 Pac. (2d) 552, 555 (1961), and the following statement from Hutchins, W. A., "Selected Problems in the Law of Water Rights in the West" 179 (1942): "On the whole, it seems obvious that to accord the first appropriator under a groundwater administrative statute the right to have the water level maintained at the point at which he first pumps it, or damages in lieu thereof, so long as there is an adequate water supply of equivalent quality available at lower depths from which it is feasible to pump, would unduly complicate the administration of water rights in the area and might seriously curtail the fullest utilization of the ground-water supply, for later uses under such a handicap may prove to be economically impracticable. This result would be out of line with the purpose of the statute. Accordingly these factors and implications are worthy of consideration in determining the question of reasonableness of the first appropriator's diversion under such circumstances." 458 Pac. (2d) at 865-866. The court added, "That an efficient and practical allocation and regulation of underground waters requires a recognition of this principle is further indicated by the fact that several of our western neighbors have in substance codified such a rule." 458 Pac. (2d) at 866. Later in its opinion the court said that section 73-3-23 "deals with the replacement by a junior appropriator (not specifically this ca^e) which states the 'replacement shall be at the sole cost and expense of the applicant', but adds 'subject to such rules and regulations as the state engineer shall prescribe.' " 458 Pac. (2d) at 866. The court at the outset of its opinion had noted that "this is not a situation where a party (Murray City) has initiated a new withdrawal in a basin which adversely affects the flow of wells prior in time and right. [Court's footnote: "Thus in that respect dif- ferent from the case of Current Creek Irr. Co. V. Andrews, 9 Utah 2d 324, 344 P. 2d 528 (1959)" discussed at note 433 supra.] What the City has. done is to create a more efficient means of taking [water] from this basin * * *." 458 Pac. (2d) at 863. Section 73-3-23 and the Current Creek case were also cited in Fair field Irr. Co. v. White, 18 Utah (2d) 93, 416 Pac. (2d) 641, 642 (1966); later decision, 28 Utah (2d) 414,503 Pac. (2d) 853 (1972). 437 Utah Code Ann. § 73-14 (1968). 43tKirk v. diddle, 12 Utah (2d) 112, 363 Pac. (2d) 777 (1961). 43tId. wDalton v. Wadley, 11 Utah (2d) 84, 355 Pac. (2d) 69 (1960). |
