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Show MONTANA 323 Abandonment of appropriation right. (1) If an appropriator ceases to use all or a part of his appropriation right with the intention of wholly or partially abandoning the right, or if he ceases using his appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions, the appropriation right shall, to that extent, be deemed considered abandoned and shall immediately expire. (2) If an appropriator ceases to use all or part of his appropriation right, or ceases using his appropriation right according to its terms and conditions, for a period of ten (10) successive years, and there was water available for his use, there shall be a prima facie presumption that the appropriator has abandoned his right in whole or for the part not used. (3) This section does not apply to existing rights until they have been determined in accordance with this act.105 Legislation previously provided simply that when an appropriator or his successor in interest "abandons and ceases to use the water" for some useful or beneficial purpose, the right ceased, and that abandonment of a water right was a question of fact, to be determined as other questions of fact.106 The Montana Supreme Court indicated that this was to be determined from the facts and intention of the party alleged to have abandoned the right,107 and that to constitute abandonment there must be a concurrence of act and intent- relinquishment of possession and intent not to resume it for a beneficial use.108 Prior to 1973, there was no provision for statutory forfeiture of a water right solely by reason of nonuse of the water for a prescribed period of years. However, the 1973 legislative provision quoted above provides that 10 years' nonuse creates a presumption of abandonment. Moreover, the part which reads, "or if he ceases using his appropriation right according to its terms and conditions with the intention of not complying with those terms and conditions" (notwithstanding the characterization that it "shall, to that extent, be deemed abandoned and shall immediately expire") appears to comprise a limited form of statutory forfeiture inasmuch as it need not be shown that, by willfully violating the terms and conditions of his right, the appropriator intended to abandon all or any part of his water right. The 1973 Montana Water Use Act discussed above provides that water may not be appropriated except as provided in the Act and that a right to appropriate water may not be acquired by "adverse use, adverse possession, prescription or estoppel."109 The Montana Supreme Court had previously said, "That the right to the use of water for irrigation or other lawful purposes may be lost by one and acquired by another by prescription is settled 105Mont. Rev. Codes Ann. §89-894 (Supp. 1973). 106 Mont. Rev. Codes Ann. §89-802 (1964). 107 Federal Land Bank v. Morris, 112 Mont. 445, 453, 116 Pac. (2d) 1007(1941). 108 Thomas v. Ball, 66 Mont. 161, 167, 213 Pac. 597 (1923). See also Shammel v. Vogl, 144 Mont. 354, 396 Pac. (2d) 103, 106 (1964). 109Mont. Rev. Codes Ann. §89-880(1) (Supp. 1973). |
