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Show 42 SURFACE WATERS (2) FORFEITURE Forfeiture occurs when the owner of an appropriation water right fails to use the water for the period prescribed by statute. The most common period of nonuse for purpose of forfeiture is 5 years, although some States have periods as short as 2 years. Unlike aban- donment, the doctrine of forfeiture is not concerned with the intent of the owner of the water right, because the fact of nonuse alone is sufficient to work a forfeiture. However, while nonuse for the statu- tory period is a prima facie forfeiture, the owner of the water right might be able to show that the nonuse resulted through no fault of his. For forfeiture to occur, the nonuse must be continuous for the statutory period, during times when the water was available for use. Thus, if there are dry yeirs when there is no water to be used under the right, or if the appropriator's headgate or other diverting facility is destroyed or becomes inoperable so that he cannot trans- port the water to his place of use, then forfeiture does not occur. With respect to continuity of nonuse, it should be noted that in- termittent nonuse will not result in forfeiture if no single period of nonuse is sufficient to satisfy the statute. If the nonuse statute pre- scribes a 5-year period, then the owner of a water right could use the water 1 year, fail to use it for 4 years, then use it again, and then allow another 4-year period of nonuse to expire, and not forfeit his water right. It is possible that only a part of a water right may be forfeited. For example, if a water user is entitled to divert 10 cfs for use, and he diverts only 6 cfs for use for a successive period of 5 years, and if the other 4 cfs which he failed to use was otherwise avail- able for use by him, then he would forfeit the 4 cfs which he did not use and would thereafter be limited to the 6 cfs that he had used. Similarly, a water right may be forfeited for certain periods of the year. If a farmer has an irrigation right to divert a certain amount of water for use through the irrigation season, and for the forfeiture period he uses the water only during the month of July and fails to use it during the other months of the irrigation season Avhen the water was available for use, he forfeits his water right ex- cept for the month of July. Water lost by forfeiture becomes part of the stream supply. If the stream is not overappropriated, the water thus becomes unappro- priated water which is subject to new appropriations. But if the stream is overappropriated so that the stream supply is not adequate to satisfy all existing rights, then the water forfeited will be distrib- uted to satisfy the holders of water rights junior to the water right forfeited. This is so because all water rights senior to the forfeited right would have been satisfied under the rules of priority before the owner of the forfeited right would have been entitled to use his water; and so, when his right is forfeited, the water will first be allo- cated to the water right next in seniority to the right forfeited, and so on down the line. As a matter of policy, forfeiture is frowned upon by the courts, and usually will be found only when the facts showing forfeiture are proved by clear and convincing evidence. |