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Show NEVADA 375 (2) Statutory forfeiture. The water rights statute provides that failure during any 5 successive years to use water for the purpose for which it was appropriated results in abandonment of the right, whereupon all rights and privileges appurtenant thereto are forfeited and the water is again subject to appropriation.76 In the Manse Spring case, the Nevada Supreme Court approved application of this provision to rights acquired under the water rights statute.77 It may be noted that the provision in question speaks of both "abandonment" and "forfeiture," although the two terms generally are entirely different in their operation. In the Manse Spring case the supreme court devoted considerable attention to fundamental distinctions between loss of a water right by intentional abandonment and loss by involuntary statutory forfeiture. In 1949, the Nevada Supreme Court considered it settled that a right to use water might be acquired by adverse use prior to enactment of the State water law, being not prepared to overrule a previous holding to that effect nor to read into the water statute something that it did not find stated there even by implication.78 However, the decision was made reluctantly, by a vote of 2 to 1; and the attention of the legislature, then in session, was specifically called by the court opinion to this problem.79 The legislature promptly amended the water statute to include a proviso, following the provision for appropriation of water to which forfeited rights had previously attached, that: "No prescriptive right to the use of such water or any of the public water appropriated or unappropriated can be acquired by adverse user or adverse possession for any period of time whatsoever, but any such right to appropriate any of such water shall be initiated by first making application to the state engineer for a permit to appropriate the same as provided in the chapter and not otherwise."80 In a 1961 case, the court indicated that to establish a water-use right by prescription before 1949 "the use and enjoyment must have been uninter- rupted, adverse, under a claim of right, and with the knowledge of the holder of the water right, and "Such use must have been for a period of at least five years."81 76Nev. Rev. Stat. §533.060(2) (Supp. 1973). 11 In re Manse Spring & Its Tributaries, 60 Nev. 280, 287-288, 289-291, 108 Pac. (2d) 311 (1940). In Franktown Creek Irr. Co. v. Marlette Lake Co., 11 Nev. 348, 364 Pac. (2d) 1069, 1072 (1961), the court said, "The water right having vested in Marlette's predecessor before 1913, it is necessary to establish the owner's intention to abandon and relinquish such right before an abandonment can be found." 78 Application of Filippini, 66 Nev. 17, 26-29, 202 Pac. (2d) 535 (1949), citing Authors v. Bryant, 22 Nev. 242, 38 Pac. 439 (1894). 79 66 Nev. at 27-29. 80 Nev. Rev. Stat §533.060(3) (Supp. 1973). 81 Franktown Creek Irr. Co. v. Marlette Lake Co., 11 Nev. 348, 364 Pac. (2d) 1069, 1071 (1961). {Continued) |
