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Show 146 CALIFORNIA Act.155 Districts are permitted to contract to sell or lease surplus waters for use either within or without the district, however, pro- vided the contract is for a period not to exceed three years.158 (4) Bights obtained by lease, license, and contract Water rights may be leased as part of the lease of real property, or separately. The same restrictions apply as in the discussion of transfers, supra. Water rights may be obtained by license in the same manner as licenses may create rights in other real property. The same principles apply as to revocability. Finally, water rights may be obtained by contractual agreement, with courts applying general real property contract law,157 although it has been held that a riparian was not permitted to contract away his riparian rights on riparian land as against other riparians.158 3.4 Loss of Rights Water rights in California may be lost by statutory forfeiture, by abondonment, by adverse use, by estoppel, and by condemnation. These procedures apply to all water of the State without regard to the source of supply, but riparian, appropriative, and Pueblo water rights are treated differently. a. STATUTORY FORFEITURE Water code sections 1240 and 1241 provide that water not bene- ficially used ceases to be part of an appropriative right and if there is nonuse of a vested right for 3 years, the unused water reverts to the public as unappropriated water. For appropriative rights prior to 1914, the period of nonuser before forfeiture has been held to be 5 years.159 Appropriative rights obtained after the Water Com- mission Act of 1913 are forfeited after 3 years' nonuse.160 Riparian rights are not subject to statutory forfeiture.161 Pueblo rights are also exempt from the forfeiture provisions.162 The party claiming a water right based on another's forfeiture has the burden of proof establishing the forfeiture.163 As in other procedures for loss of right, either all or part of a water right may be lost by forfeiture.164 ABANDONMENT A water right is abandoned in California when possession is re- linquished without a present intention to repossess. Concurrent in- 155 See discussion, Meyers and Posner, supra note 7, p. 25, app. 1 at Al-23 to Al-28. 168 W.C., sees. 22259-22260. «t Fawkes v. Reynolds, 190 C. 204. 211, 211 P. 449 (1922). 158 Duckworth v. Watsonville Water dLight Co., 150 C. 520, 526-527, 89 P. 338 (1907). 159 Smith v. Hawkins, 110 C. 122, 126-127, 42 P. 453 (1895). *>° Crane v. Stevinson, 5 C. 2d 387, 398, 54 P. 2d 1100 (1936). 161 Herminghaus v. So. Calif. Edison Co., 200 C. 81, 115-116, 252 P. 607 (1926); Tulare Irr. Dist. v. Lindsey Strathmore Irr. Dist., 3 C. 2d 489, 530-531, 45 P. 2d 972 (1935). wLos Angeles v. Qlendale, 23 C. 2d 68, 75-76, 142 P. 2d 289 (1943). ™*Lema v. Ferrari, 27 Cal. app. 2d 65, 73, 80 P. 2d 157 (1938). 184 Smith v. Hawkins, supra note 2, above, at 88; Lindblom v. Round Valley Water Co., 178 C. 450, 456, 173 P. 994 (1918). |
