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Show 820 WYOMING necessary element in the abandonment of a right, but in statutory- forfeiture it is the nonuse of the water for the statutory period that causes the loss of the right, and the intent of the owner is not a factor. This distinction was clarified in a fairly recent Wyoming Supreme Court decision.105 A right cannot be lost by nonuse if the nonuse is caused by factors beyond the appropriates control.106 The power to cancel the whole of an appropriation carries with it the right to cancel a part of the right.107 However, until a forfeiture has been formally declared by someone in authority, the owner still retains title to the right.108 Forfeitures are not favored and should only be declared upon reasonably clear and satisfactory evidence.109 Under existing statutory procedure, any water user who might be affected may petition the board of control for a declaration that a forfeiture has occurred. Those users considered affected are only those whose rights would be enlarged or benefited by the forfeiture.110 If, after hearing, the board concludes that the right challenged has been forfeited, it issues an order which may be appealed to the dis- trict court.111 This statutory procedure is not the exclusive method of determining that there has been a forfeiture of a water right. For example, forfeiture of a plaintiff's water right may be inter- posed in defense of an action for an injunction.112 Although the board of control, and the district court have concurrent jurisdiction in forfeiture actions, the initial decision should (subject to the dis- trict court's discretion) be made by the board.113 Ground water rights may be declared forfeited under the same procedures as provided for the forfeiture of surface waters.114 B. ABANDONMENT Abandonment requires an intent to give up or forsake the water right, as well as nonuse of the water. Without the element of intent, there is no abandonment, and this distinguishes abandonment from statutory forfeiture.115 Abandonments are not favored and the burden of proof rests upon the party asserting that an abandonment has taken place.116 C. ADVERSE USE While never squarely deciding the question, the Wyoming Su- preme Court, after finding that under the facts of the case a pre- scriptive right had not been shown, indicated that there was some doubt that a prescriptive or adverse use right could be established in Wyoming, particularly since 1890 when the legislature required v. Yoder, 355 P. 2d 371 (1960). loa Ramsay y. Qottsche, 51 Wyo 516, 69 P. 2d 535 (1937) ; Yentzer v. Hemenway, 440 P. 2d 7 (1968). la~Yentzer v. Hemenway, 440 P. 2d 7 (1968). los Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320. 92 P. 2d 572 (1939). 10» Ramsay v. Gottsche, 51 Wyo. 516, 69 P. 2d 535 (1937). no Wyo. Stat., sec. 41-48 ; Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P. 2d 572 (1939). 111 Wyo. Stat., sees. 41-50, 41-53. 112Lonth v. Kaser, 364 P. 2d 96 (1961). 113 Kearney Lake, Land & Reservoir Co. v. Lake DeSmet Reservoir Co., 475 P. 2d 548 (1970), 487 P. 2d 324 (1971). luWyo. Stat., sec. 41-136. U5 Ward v. Yoder, 355 P. 2d 371 (1960). 118 Laramie Rivers Co. v. LeVasseur, 65 Wyo. 414, 202 P. 2d 680 (1949). |