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Show 482 NEVADA b. ABANDONMENT Although the Nevada statute speaks in terms of both abandonment and forfeiture, they are different legal concepts, and the court noted this distinction, pointing out that intent is a necessary element of abandonment but not of forfeiture. Abandonment requires both an intent to forsake the right and an act of nonuse.121 In one case, the court ruled that the discharge of water for the purpose of getting rid of it, and without any intention of reclaiming it, was conclusive evidence of an abandonment of the right.122 Upon an abandonment, the right ceases and the water reverts to the public, and the aban- doned right cannot be reinstated or use resumed after the rights of others have intervened.123 C. ADVERSE USE In 1949, a statute was adopted which provides that an adverse use right cannot be acquired in any of the appropriated or unappro- priated water in Nevada.124 However, prior to that time a right could be acquired by adverse use if there was an actual, open, notori- ous, and exclusive use of the water, under claim of right, for the full period prescribed by the statute of limitations.125 A prescriptive right cannot be claimed during a period where there was a water supply abundant for all users.126 Acquisition of rights by adverse use is not favored, and the burden of proof is upon the party claiming a right by adverse use to demonstrate that he has, in fact, established such a right.127 d. ESTOPPEL In a Federal case which arose in Nevada, the court ruled that a claim of equitable estoppel must fail where it was shown that the claimant's adverse use of water to the injury of other parties was resisted and, in fact interrupted by physical force, and the filing of a lawsuit.128 e. MISCELLANEOUS Some classes of water raise questions with respect to rights of use and control, and the extent to which rights of use are lost or re- stricted. Some of these special problems are noted below. (1) Saved water.-The Nevada court has observed that if water which is lost to the system can be saved by substituting ditches, flumes, and pipes for wide, sandy channels which lose water, then the claimant who, at his own expense, is desirous of effecting this savings, is entitled to use the water saved. However, no savings pro- gram can be instituted unless it can be accomplished without detri- ment to existing rights.129 ^Valcalda v. Silver Peak Mines, 86 Fed. 90 (CCA. 9th 1898). ^Schulss v. Sweeny, 19 Nev. 359, 11 Pac. 253 (1886). 123 Nev. Rev. Stat, sec. 533.060; Anderson Land & Stock Co. v. MoConnell, 1S8 Fed. 818 (D. Nev. 1910). 324 Nev. Rev. Stat., sec. 533.060. 1!&Boynton v. Longley, 19 Nev. 69, 6 Pac. 437 (1885) ; Application of Filippini, 66 Nev. 17, 202 P. 2d 535 (1949). 126 Union Mill & Min. Co. v. Dangoerg, 81 Fed. 73 (D. Nev. 1897) ; Franktown Creek Irrigation Oo. v. Marlette Lake Co., 77 Nev. 348, 364 P. 2d 1069 (1961). mjBoynton v. Longley, 19 Nev. 69, 6 Pac. 437 (1885). v* Anderson v. Bassman, 140 Fed. 14 (N.D. Calif. 1905). *» Tonkin v. Winzell, 27 Nev. 88, 73 Pac. 593 (1903). |