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Show 728 UTAH ever, in accomplishing this exchange, the water in the watercourse or reservoir must not be deteriorated in quality or diminished in quantity as a result of the exchange.90 3.4 Loss of Rights The following rules and procedures govern loss of water rights in Utah, and they apply to all waters of the State, without regard to the source of supply. A. STATUTORY FORFEITURE A Utah statute provides that where an appropriator abandons or ceases to use his water for a period of 5 years, the right shall cease and revert to the public unless the owner applies to the State engi- neer for, and receives, an extension of time within which to resume use of the water. If a forfeiture occurs, the water reverts to the public.97 Forfeiture is based upon failure to use the water and the intent of the water user is not a factor.98 The Utah Supreme Court has held that a forfeiture will not occur if the appropriator is pre- vented from using the water by conditions of nature, such as drought conditions, or when the water otherwise simply is not available." B. ABANDONMENT In order for an abandonment of a water right to occur, there must be an intent to abandon or forsake the right, coupled with a corre- sponding nonuse of the water.100 Abandonment is distinguished from forfeiture in that the intent of the appropriator is important (in fact, essential) and no particular time element is involved (whereas it was noted that a statutory forfeiture cannot occur in less than 5 years and the intent of the water user is immaterial). The burden is upon the person claiming an abandonment to prove the elements which constitute abandonment.101 C. ADVERSE USE Prior to 1939, the doctrine of adverse use was applicable to water rights in Utah. However, in 1939 the legislature enacted a statute which provided that no right to use water could thereafter be ac- quired by adverse use.102 Consequently, in Utah today if an appro- priator's water is used by another without his consent, no adverse use right will result but the right will be forfeited at the end of a 5-year period, and will revert to the public. With respect to the acquisition of adverse use rights in the pre- 1939 period, the Utah court announced that in order to gain such a right, there had to be a 7-year period (the period applicable to land titles) of continuous, uninterrupted, hostile, notorious, adverse en- M Utah Code Ann., sec. 73-3-20. 97 Utah Code Ann., sec. 73-1-4. 08 Kirk v. Griddle, 12 U. 2d 112, 363 P. 2d 777 (1961). 89 Rocky Ford Irr. Co. v. Kents Lake Res. Co., 104 Utah 202, 135 P. 2d 108 (1943). 100 Promontory Ranch Co. x. Argile, 28 Utah 398. 79 Pac. 47 (1904). wlDalton v. Wadley, 11 TT. 2d 84, 355 P. 2d (59 (1960). ]02Utah Code Ann., see. 73-3-1. |
