OCR Text |
Show 270 IDAHO d. LIMITATIONS Perhaps the most frequent basis for complaint is the question of return flow. A downstream junior appropriator is entitled to have the stream maintained in the same condition as when he made his appropriation, and any proposed change which would deprive the downstream user of the benefit of return flow which he relied upon in initiating his right will not be allowed.92 However, there are de- cisions which hold that if the return flow is so excessive from the original appropriator as to be wasteful, then there is no right to have this wasteful return flow pattern maintained for the benefit of the downstream users.93 e. EXCHANGES Water from a reservoir or other source of supply may be turned into a natural watercourse, and a like amount taken at some other point along the stream or any tributary thereof, after due allow- ance has been made for loss by evaporation and seepage.94 However, an exchange cannot be accomplished if it would injure the rights of other users by depriving them of water which they are entitled to under their vested rights.95 3.4 Loss of Rights Under Idaho law, water rights may be lost in the following manner: a. STATUTORY FORFEITURE The Idaho statute relating to forfeiture provides that a right to use water may be lost and forfeited upon failure to apply the water to beneficial use for a 5-year period, and the water thereupon reverts to the State and becomes subject to appropriation. However, upon a proper showing, the director may grant extensions of time for nonuse for additional 5-year periods.96 The intent of the user is not a factor in statutory forfeiture. For- feitures are not favored and must be established by clear and con- vincing evidence.97 Even if there has been a nonuse for 5 years, if the owner of the right resumes the use of the water prior to the appropriation thereof by a third party, there will be no forfeiture of the water right and it will not inure to the benefit of a later claimant.98 b. ABANDONMENT In order for an abandonment of a right to occur, there must be a nonuse of the water, coupled with an intent to forsake the right." 83Hall v. Blackman, 22 Idaho 556, 126 Pac. 1047 (1912). eaOolthorp v. Mountain Home Irr. Dist., 66 Idaho 173, 157 P. 2d 1005 (1945) ; and Application of Moyer, 73 Idaho 152, 248 P. 2d 540 (1952). MIdaho code, sec. 42-105. m Daniels v. Adair, 38 Idaho 130, 220 Pac. 107 (1923). 89 Idaho code, sec. 42-222. * Graham v. Leek, 65 Idaho 279, 144 P. 2d 475 (1943). ™Zezi V. Lightfoot, 57 Idaho 707, 68 P. 2d 50 (1937). "Joyce v. Murphy Land & Irr. Co., 35 Idaho 549, 208 Pac. 241 (1922). |