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and a judgment for plaintiff, reserving undefined rights to defendant in the waters of the tributaries, was erroneous.']

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Many of the cases heretofore cited, and several of the rules formulated in the foregoing sections, recognize the fact that there may be an abandonment of the exclusive right to divert and use water acquired by or resulting from a prior appropriation; that such an abandonment may be made either after the prior appropriation has become perfect and complete, and the right under it vested, or while it is yet inperfect and inconi plete, and the right under it remains inchoate; and, finally, that an abandonment may be express and immediate, by the intentional act of the appropriator, or may be implied from his neglect, failure to nse due diligence in the construction of his works, non-user of them after completion, and the like. The general doctrine concerning the effect of such an abandonment, at whatever time or in whatever manner made, is well settled. The prior appropriator thereby loses all of his exclusive rights to take or use the water wliich he had acquired, or might have acquired, by his appropriation; and he cannot, after an abandonment, reassert his original right to the same, or the same amount of water, as against a second or other subsequent claimant who has taken proper steps to effect an appropriation thereof. If there has been no subsequent appropriation of the water thus abandoned, by another party, the prior appropriator may, of course, regain his former right, but this can only be done by his properly commencing and completing de novo the requisite steps in order to effect an appropriation, as heretofore described. He is in exactly the same situation as though he had hitherto made no attempt to appropriate the water."

3 Salina Creek Irr. Co. v. Salina Stock Co., (Utah,) 27 Pac. Rep. 578.

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§ 97. Methods of abandonment.

The methods in which an abandonment may be accomplished are various. Since the right held by the appropriator is an interest in land, an incorporeal hereditament, it can only be transferred, as has already been shown, by an instrument in writing sufficient to convey real estate. It follows that a mere verbal sale and transfer of his water right by a prior appropriator operates ipso facto as an abandonment thereof.? Such act shows an unequivocal intent on the part of the appropriator to give up and relinquish all of his interest, and, as it does not effect any transfer thereof to the attempted assignee or vendee, the only possible result is an immediate and complete abandonment. The same result follows from an attempted transfer of the water right by means of an imperfect deed or instrument of conveyance.3 [But it is held that the grant of a ditch and water right to an alien is not an abandonment by the owner, but the alien may hold the same, until forfeited by office found, against collateral attacks by third persons, other than the state, and, in the absence of such forfeiture, may convey title.'] Returning the water, which has been di

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1 Davis v. Gale, 32 Cal. 26; Barkley v. Tieleke, 2 Mont. 59; and see cases cited ante, concerning the mode of making an appropriation, due diligence in completing the works, etc.; and concerning the discharge of water into the stream without intent of “recapture.

2 Smith v. O'Hara, 43 Cal. 371. But compare Hindman v. Rizor, 21 Oreg. 112, 27 Pac. Rep. 13.

3 Barkley v. Tieleke, 2 Mont. 59. In both these instances, as has al

ready been shown, no interest passes to the transferees; they do not succeed to any priority held by their assignor; their rights of priority date only from the time of their own possession and user.

4 Quigley v. Birdseye, 11 Mont. 439, 28 Pac. Rep. 741. In this case the learned court observed: “In the chain of title of plaintiff to the ditch and water right which he claims. (the China ditch,) ap pear the names of some alleged

verted back into the natural channel of the stream without the intent of "recapturing" it would be an

, express abandonment of all further rights to the use of such water; and the absence of any intent to "re capture” would generally be inferred, it seems, unless the returning of the water, after its first diversion, was made for the purpose of using the natural channel as a part of the appropri

*

Chinamen as grantees from the to exploration, occupation, or purolder owners of the ditch, and as cbase by aliens. An alien may grantors to the plaintiff. Defend. not even take or hold real estate apts claim that, under the doc- of this class.

Let it be trine of Tibbitts v. Ab Tong, 4 conceded, in the case at bar, that Mont. 536, 2 Pac. Rep. 759, and the Chipamen who were a link in Wulf v. Manuel, 9 Mont. 270, 23 the chain of plaintiff's title were Pac. Rep. 723, Chinamen cannot aliens. Let it be conceded that take real estate, and therefore the ditch and water right were that the grant of this water right real estate. It was not real estate and ditch to the Chinamen was an of any such nature as are possessabandonment by the original own- ory rights to mining claims upon ers, and hence plaintiff took no the public domain of the United title from the Chinamen. In those States. Its possession, or its right cases the real estate in question of possession, was not restricted, was mining claims upon the pub- as are said mining rights, by a lic domain of the United States. special statute of the United In Wulf v. Manuel we endeavored States, declaring that none should to make it clear that such mining occupy or purcbase it but citizens claims were a class of real estate of the United States, and those sui generis, and the doctrine of who had declared their intention those cases was placed upon the to become such. The inapplicapeculiar character of the real es. bility of the doctrine of Tibbitts tate in question, by virtue of the V. Ah Tong and Wulf v. Manuel provisions of the United States to real estate not clothed with the statutes which opened the mineral peculiar characteristics of possess. lands of the United States to ex- ory rights to mining claims is apploration and purchase by citizens parent. Therefore we have simof the United States and those ply this proposition: The chain who had declared their intentions of title is A. to B. to C. to D. D. to become such. We said in Wulf is in court with bis title attacked v. Manuel, page 285, 9 Mont., and because C. was an alien. The real page 725, 23 Pac. Rep.: 'No other estate is not a possessory right to persons may apply to purchase a mining claim. All that is to be (such mineral lands] from the considered is therefore whether United States. The mineral lands an alien may take real estate, and of the government are not open hold the same until office found,

a

ator's ditch or canal." Again, an abandonment may be inferred from a neglect to use the water for an unreasonably long time, especially if the special purposes of its original appropriation had been fully accomplished. Thus, in an important case already quoted, the court, after saying that the prior appropriator of water for a particular mine may, when he has worked out and abandoned said mine, extend his ditch and use the water at other points, without losing his priority, further held that, where water had been appropriated for a particular purpose, and that purpose had been accomplished, the appropriators dispersed and allowed a long time to elapse without making any use of the water under their appropriation, and finally sold the ditch to other parties for a nominal sum, all these facts were sufficient evidence of an abandonment by them; in other words, an abandonment of their prior appropriation might be inferred from such conduct. The court further held that, when a party has abandoned his prior appropriation, he cannot, by a sale and conveyance, revive his prior rights in favor of his grantees, even though the sale is bona fide on their part. On the other hand,

.? the mere suspension of work in constructing a ditch for a lim

against collateral attacks by third persons other than the sovereign, and whether such alien, in the ab. sence of forfeiture by office found, may convey title to bis grantee. Of this there is no doubt."

1 Woolman v. Garringer, 1 Mont. 535; Davis v. Gale, 32 Cal. 26; Butte Canal Co. v. Vaughn, 11 Cal. 143. [A party cannot reclaim water that he has used and then allowed to pass from his control. Eddy v. Simpson, 3 Cal. 249; and see Schulz v. Sweeny, 19 Nev. 359, 11 Pac. Rep. 253.]

2 Davis v. Gale, 32 Cal. 26. See also Kirman v. Hunnewill, 93 Cal. 519, 29 Pac. Rep. 124. [In

Lowden v. Frey, 67 Cal. 474, 8. C. 8 Pac. Rep. 31, the court said: "The testimony tends to show that the appropriation of the water by the defendants and their grantors was for mining purposes generally, to be used at various points. Un. der such circumstances, the position of the plaintiff, that 'the right to the use of water for mining purposes ceases with the exbaustion of the mine for which it was ap. propriated.' has no application.” It is not stated what would be the effect if the water were appropriated for use in one particular mine, and that mine became exhausted.]

"

2

ited and reasonable time would not necessarily be an abandonment of the appropriator's inchoate right. It has already been shown in a previous section that one who has given notice of his intention to appropriate the water of a certain stream, must commence and prosecute his works unto completion with due and reasonable diligence, in order to perfect his exclusive right hy appropriation. It seems to follow from this affirmative proposition that a neglect or failure on his part to use the due and reasonable diligence so required in constructing his works, must necessarily amount to an abandonment of the intended appropriation, and of all rights which could have been acquired by its means.

[A corporation, which, under its charter, has the exclusive right to all the waters of a stream, and the exclusive privilege of using and controlling the same for various purposes, cannot allow such right to remain in abeyance for a long series of years, and thereafter assert the same to the exclusion of those who have, in the mean time, acquired rights to the use of such stream by actual appropriation and use, in pursuance of the general laws of the state.3 On similar principles, if an irrigation ditch is abandoned and disused for a term of years, and then reopened to a less capacity than it formerly had, and so used for a long time, it cannot thereafter be increased to its original capacity, if that would operate to the detriment of intervening rights of third persons.* In Utah, the statute provides that a neglect for seven years to keep in repair any means of diverting or conveying water shall be held to be a forfeiture of the right. And under this

1 Atchison v. Peterson. 1 Mont. 561.

2 See ante, $ 52.

3 Platte Water Co. v. Northern Colorado Irr. Co., 12 Colo. 525, 21 Pac. Rep. 711.

4 Jatunn v. O'Brien, 89 Cal. 57, 26 Pac. Rep. 635. See further. Greer v. Heiser, 16 Colo. 306, 26 Pac. Rep. 770; Hewitt v. Story, 51 Fed. Rep. 101.

62 Comp. Laws Utah, $ 2783.

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