ing than this, then as between such enlarged use and prior rights for agricultural and manufacturing purposes, it is subject to the constitutional provision requiring just compensation to those whose rights are affected thereby. (268) The business of making electric lights and power for the same is a sort of manufacture and is not classed as a domestic use. (269) Domestic use, under the common-law doctrine of riparian rights, is discussed in Part I. (270)

CHAPTER 7.

ABANDONMENT, FORFEITURE AND RESUMPTION. (a)

Abandonment.

§ 63. Abandonment-Defined.

At common law abandonment is defined as "the relinquishment of a claim or privilege." (271)

The right secured by the appropriator is, in law, a grant from the state or territorial government. (272) The right, therefore, can be lost in all of the arid and semi-arid states and territories by surrender or abandonment. (273) There is a great diversity of opinion as to what acts are sufficient to prove an intention to abandon. Abandonment is purely a matter of intention. (274) Neither non-use nor neglect of repairs is sufficient to create the presumption of abandonment un

(268) Montrose Canal Co. v. Loutsenhizer Ditch Co., 23 Colo. 233, 48 P. 532 ('96).

(269) Schwab v. Beam [Colo.], 86 Fed. 41 ('98).

(270) (271) (272)

Supra, §17.

Webster's Dict.
Ante, $40.

(273) The statutes of the different states and territories frequently have provisions relating to abandonment or forfeiture. See post, Part X.

(274) Hoffman v. Stone, 7 Cal. 47 ('57); Butte Canal & Ditch Co. v. Vaughn, 11 Cal. 143 (58); Davis v. Gale, 32 Cal. 27 ('67); Utt v. Frey, 106 Cal. 397, 39 P. 807 ('95); Integral Quicksilver M. Co. v. Altoona M. Co. [Cal.], 75 Fed. 380 ('96). Atchison v. Peterson, 1 Mont. 561 ('72); Barkley v. Tieleke, 2 Mont. 61 ('74); Kleinschmidt v. Greiser, 14 Mont. 484, 37 P. 5 ('94); Middle Cr. D. Co. v. Henry, 15 Mont. 558, 39 P. 1054 ('95);

less continued for an unreasonable length of time.(275) In most cases it is held that such non-use must continue for the period prescribed by the statute of limitations. (276) An abandonment can be made by one or more tenants in common, and the others may, at the ame time, preserve their rights.(277) An appropriator using water through two or more ditches may abandon one ditch without abandoning the water right, (278)

Smith v. Hope, M. Co. 18 Mont. 432, 45 P. 632 ('96); Goon v. Procter, 27 Mont. 526, 71 P. 1003 ('03); Hayes v. Buzzard, 31 Mont. 74, 77 P. 423 ('04); Hewitt v. Story [Cal.], 64 Fed. 510 ('94); Moss v. Rose, 27 Ore. 595, 41 P. 666 ('95); Wimer v. Simmons, 27 Ore. 1, 39 P. 6 ('95); Greer v. Heiser, 16 Colo. 306, 26 P. 77 ('91); Beaver Brook Res. Co. v. St. Vrain Res. Co., 6 Colo. App. 130, 40 P. 1066 ('95); New Mercer D. Co. v. Armstrong, 21 Colo. 357, 40 P. 989 ('95); Putnam v. Curtis, 7 Colo. App. 437, 43 P. 1056 ('96); Nichols v. Lantz, 9 Colo. App. 1, 47 P. 70 ('96); Hall v. Lincoln, 10 Colo. App. 360, 50 P. 1047 ('97); North Am. Exploration Co. v. Adams [Colo.], 104 Fed. 404 ('00); Lower Latham D. Co. v. Louden Irr. Co., 27 Colo. 267, 60 P. 629 ('00); Hector M. Co. v. Valley View M. Co.; 28 Colo. 315, 64 P. 205 ('01); Butterfield v. O'Neill, 19 Colo. App. 7, 72 P. 807 ('03); Shaltz v. Sweeney, 19 Nev. 359, 11 P. 253 ('86); Stallin v. Ferrin, 7 Utah 477, 27 P. 686 ('91); Holman v. Pleasant Grove, 8 Utah 78, 30 P. 72 ('92); Promontory Ranch Co. v. Argile, 28 Utah 398, 79 P. 47 ('04); Last Chance M. Co. v. Bunker Hill M. Co. [Ida.], 49 Fed. 430 ('92); Welch v. Garrett, 5 Ida. 639, 51 P. 405 ('97); Ada Co. Farmers' Irr. Co. v. Farmers' Canal Co., 5 Ida. 793, 51 P. 990 ('97); Farmers' Irr. Dist. v. Frank, Neb.-, 100 N. W. 286 ('04). Abandonment being a matter of intention, it is proper to admit evidence of statements made by an appropriator which show no intention to abandon- Central Trust Co. v. Culver, Colo., 83 P. 1064 ('05); Boulder & White Rock D. Co. v. Leggett Consol. D. & R. Co., Colo., 86 P. 101 ('06).

(275) Cases cited, note 274.

(276) McCauley v. McKeig, 8 Mont. 389, 21 P. 22 ('89); Gassert v. Jones, 18 Mont. 216, 44 P. 959 ('96); Sloan v. Glancy, 19 Mont. 70, 47 P. 334 ('97); Dodge v. Martin, 7 Ore. 456 ('79); Ison v. Nelson [Ore.], 47 Fed. 199 ('91); Wimer v. Simmons, 27 Ore. 1, 39 P. 6 ('95); Turner v. Cole, 31 Ore. 154, 49 P. 971 ('97); Oviatt v. Big Four M. Co., 39 Ore. 118, 65 P. 811 ('01); Sieber v. Frink, 7 Colo. 148, 2 P. 901 ('83); Dorr v. Hammond, 7 Colo. 79, 1 P. 693 ('85); Farmers' Highline C. & Res. Co. v. Southworth, 13 Colo. 111, 21 P. 1028 ('89); People v. Farmers' Highline C. & Res. Co., 25 Colo. 202, 54 P. 626 ('98); North Am. Exploration Co. v. Adams [Colo.], 104 Fed. 404 ('00); Farmers' Irr. Dist. v. Frank, Neb. 100 N. W. 286 ('04).

(277) Meagher v. Hardenbrook, 11 Mont. 385, 28 P. 451 ('91).

(278) Post, $129.

where the water is still diverted through the remaining ditch. (279) An abandonment of the right to use water is a relinquishment which operates for the benefit of other appropriators in the order of their priority, (280) and it cannot be made in favor of a particular individual or for a consideration, (280) and if for any reason the sale or conveyance of a right fails, it cannot be converted into an abandonment. (280) There can be no abandonment without some action of the will and an intent to abandon. Time is not an essential element of abandonment. The moment the intention to abandon and the relinquishment of possession unite, the abandonment is complete. (281) In the case of Schwab v. Beam, (282) where it was held that in Colorado the location of a placer ex vi termini, imports an appropriation of the waters covered by it so far as the waters are necessary for the working of the placer claim, there can be no abandonment of the water as distinguished from the land, or of the land as distinguished from the water. (283) Water, which after being used by the appropriator, is turned into a natural stream without any intention of recapturing it, is abandoned, and is subject to appropriation and use by others. (284) Any intention to recapture such water must be clear and apparent. (285) Abandonment is most usually proved by a failure to use the water, or to keep the diverting works in repair, and if continued for an unreasonable period they create a presumption of an intention to abandon. This presumption, how

(279) Nichols v. McIntosh, 19 Colo. 22, 34 P. 378 ('93); New Mercer D. Co. v. Armstrong, 21 Colo. 357, 40 P. 989 ('95). (280) Middle Cr. D. Co. v. Henry, 15 Mont. 558, 39 P. 1054 ('95); Cache La Poudre Res. Co. v. Water Sup. & Storage Co., 27 Colo. 532, 62 P. 420 ('00); Last Chance Min. Co. v. Bunker Hill & S. Min. and Concentrating Co. [Ida.], 49 Fed. 430 ('92). (281) Wimer v. Simmons, 27 Ore. 1, 39 P. 6 ('95); Nichols v. Lantz, 9 Colo. App. 1, 47 P. 70 ('96).

(282) 86 Fed. 41 ('98); Rutherford v. Lucerne Canal & Power Co., 12 Wyo. 299, 75 P. 445 (04).

(283) For criticism of the Schwab-Beam case, see supra, $23.

(284) Colo. Land & Water Co. v. Rocky Ford Canal, etc., Co., 3 Colo. App. 545, 34 P. 580 ('93).

(285) Shaltz v. Sweeney, 19 Nev. 359, 11 P. 253 ('86).

ever, is not conclusive, and may be overcome by other satisfactory proofs, (286) and the burden of proving an abandonment is upon the party asserting it, (287) and it must be proven by a preponderance of the evidence. (288)

§ 64. Abandonment-Who Benefits By.

An abandonment operates for the benefit of the other appropriators from the same source, in the order of their priority. (289) The language used by Bissell, J., in Suffolk Gold Min & Mill. Co. v. San Miguel Con. Min. & Mill. Co., (290) is somewhat misleading if the accepted meaning of the words, "subsequent locator" (291) is not kept in mind. Speaking of the effect of an abandonment, Bissell, J., said:

"Yet no one would dispute the proposition that if the appropriator abandons the use, whether it be the original or any subsequent one, he would thereby

(286) Sieber v. Frink, 7 Colo. 148, 2 P. 901 ('83); Beaver Brook Res. Co. v. St. Vrain Res. Co., 6 Colo. App. 130, 40 P. 1066 ('95).

In

(287) Putnam v. Curtis, 7 Colo. App. 437, 43 P. 1056 ('96). (288) Hall v. Lincoln, 10 Colo. App. 360, 50 P. 1047 ('97). Instances where there was held to have been an abandonmentOppenlander v. Left-Hand Ditch Co., 18 Colo. 142, 31 P. 854 ('92); Lamborn v. Bell, 18 Colo. 346, 32 P. 989 ('93); Rutherford v. Lucerne Canal & P. Co., 12 Wyo. 299, 75 P. 445 ('04). stances where it was held there had been no abandonment-Atchison v. Peterson, 1 Mont. 561 ('72); Middle Cr. Ditch Co. v. Henry, 15 Mont. 558, 39 P. 1054 ('95); Hayes v. Buzzard, 31 Mont. 225, 77 P. 423 ('04); Greer v. Heiser, 16 Colo. 306, 26 P. 770 ('91); Putnam v. Curtis, 7 Colo. App. 437, 43 P. 1056 ('96); Cache La Poudre Res. Co. v. Larimer and Weld Res. Co., 25 Colo. 144, 53 P. 318 ('98); Turner v. Cole, 31 Ore. 154, 49 P. 971 ('97); Welch v. Garrett, 5 Ida. 639, 51 P. 405 ('97).

(289) Middle Cr. D. Co. v. Henry, 15 Mont. 558, 39 P. 1054 ('95); Cache La Poudre Res. Co. v. Water Sup. & Storage Co., 27 Colo. 532, 62 P. 420 ('00); Last Chance Min. Co. v. Bunker Hill & S. Min. and Concentrating Co. [Ida.], 49 Fed. 430 (' ('92).

(290) 9 Colo. App. 407, at p. 412, 48 P. 828 ('97). (291) "Subsequent locator" and "subsequent appropriator" are terms used to designate the person or persons who locate lands, or make an appropriation of water, after a location or appropriation has been made by another or others. Relatively speaking, the latter class is referred to as prior appropriators and the former as subsequent appropriators. The comparison is always made as between the dates of the respective appropriations. See cases cited under appropriations, §§39-40.

lose all title, and the right to the water would revert to the people, and would belong to whomsoever might thereafter appropriate it, and would likewise inure to the benefit of any subsequent locator on the stream, (292) who, by reason of the abandonment, might become both prior in time and prior in right.”

It has been contended by some that the court there holds that after the abandonment, and the reversion of the water to the people, a new appropriation could be made and the new appropriator would, by virtue of his appropriation of an abandoned right, be advanced to the priority occupied by such right before the abandonment. This is clearly not the intention, for by the use of the clause "would likewise inure to the benefit of any subsequent locator on the stream," etc., the court clearly referred to those whose date of location is subsequent to that of the locator or appropriator who abandons his right. Any appropriation of the surplus water of the stream, after the abandonment, would unquestionably be treated as a new appropriation, and its priority and date would be fixed in the same manner as other original appropriations. (293) The same results will follow a forfeiture of a right under statute, which is discussed in the following sections.

§ 65.

Drainage-Not Beneficial Use-Abandonment.

A landowner is entitled to the natural drainage for surface water flowing across his land, and one who by dams or embankments obstructs such natural drainage and causes such surface water to back up and overflow the land, is liable for the damages resulting therefrom. (294) A diversion of water for drainage, without any intention to apply it to a beneficial

Ante, $57.

(294) Chicago, B. & Q, R. Co. v. Emmert, 53 Neb. 237, 73 N. W. 540 ('97); Chicago, R. I. & P. R. Co. v. Andreesen, 62 Neb. 456, 87 N. W. 167 ('01); Chicago, R. I. & P. R. Co. v. Shaw, 63 Neb. 380, 88 N. W. 508 ('01); Missouri P. Ry. Co. v. Hemmingway, 63 Neb. 610, 88 N. W. 673 (02); Todd v. York County, Neb. 100 N. W. 299 ('04); Thompson v. Bolsa Land Co.. Cal., 82 P. 207 ('05); Dallas & W. Ry. Co. v. Kinnard, Tex. - 18 S. W. 1062 ('92); Hughes v. City of Austin, 33 S. W. 607 ('95)

Tex.-,