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law, it is held that one claiming an easement in a waterditch crossing the land of another, and failing to make repairs thereon for the statutory period, forfeits his right to the ditch.1 But the evidence to show an abandonment or forfeiture for non-user must be clear and complete. Where, for instance, the jury finds that an appropriator of water for placer mining did not use the water for five specified years, but finds that he did use it during an intervening year, and the testimony shows that during some of those years there was not water enough to work the mines, the evidence is not sufficient to establish an abandonment of the right. So the fact that for several years a party has obtained his water exclusively through a neighbor's ditch, by agreement, will not affect his right to receive water through his own ditch, as against the neighbor's grantee. And in at least one state it is held that, although one who has appropriated water for irrigating purposes abandons it, yet if no new-comer enters upon the land and uses the right during his absence, he may, upon his return, resume his rights, and avoid the effect of such abandonment.*]
§ 98. Abandonment by adverse user.
[The right of the first appropriator of water on the public lands may be lost by the adverse possession of another; and when such other person has had the continued, uninterrupted, and adverse enjoyment of the water, or of some certain portion of it, for a sufficient length of time, the law will presume a grant of the right so held and enjoyed by him. So far as the defense of adverse possession or of equitable estoppel is concerned, it is immaterial whether or not the waters of the stream which fed the ditch were appropriated in compliance with the statute as to posting notices and other regulations. A defendant may plead adverse possession of a ditch appurtenant to his land and running through plaintiff's land, though defendant has never paid any taxes assessed against plaintiff's land (which does not appear to have been taxed any higher on account of the ditch), but has always paid the taxes on his own land, the value of which was enhanced by the water froin the ditch.2 A failure to use for a time is competent evidence of abandonment; and if such non-user continues for an reasonable period it may fairly create a presumption of intention to abandon; but this presumption is not conclusive, and may be overcome by other satisfactory proofs.3 'Thus where, in an action to try the title to a certain water right, the defendant denied plaintiff's alleged ownership, and set up title by adverse possession, the plaintiff, after proving prior appropriation in himself, might, in order to defeat the defense of the statute of limitations, show in rebuttal that the defendant, before any bar of the statute had attached, had acknowledged the plaintiff's claim, and endeavored to lease the said water right from the plaintiff.4]
1 Stalling v. Ferrin, (Utah,) 27 Pac. Rep. 686.
2 McCauley v. McKeig, 8 Mont. 389, 21 Pac. Rep. 22.
3 Greer v. Heiser, 16 Colo. 306, 26 Pac. Rep. 770.
4 Tucker v. Jones, 8 Mont. 221 19 Pac. Rep. 571.
5 Union Water Co. v. Crary, 25 Cal. 504; Smith v. Logan, 18 Nev. 149. Five years' adverse possession is sufficient 10 bar an action to enforce a water right. Evans v. Ross, (Cal.) 8 Pac. Rep. 88. It is held in Oregon that non-user works no abandonment, unless continued long enough to give a title to realty under the statute of limitations. Dodge v. Marden, 7 Or. 456.
1 Coonradt v. Hill, 79 Cal. 587, 21 Pac. Rep. 1099; Frederick v. Dickey, 91 Cal. 358, 27 Pac. Rep. 742.
2 Coopradt v. Hill, 79 Cal. 587, 21 Pac. Rep. 1099.
3 Sieber v. Frink, 7 Colo. 148, s. c. 2 Pac. Rep. 901. And see Dorr v. Hammond, 7 Colo. 79, 8. c. 1 Pac. Rep. 693.
4 Ledu v. Jim Yet Wa, 67 Cal. 346, 7 Pac. Rep. 731. See also Oneto v. Restano, 89 Cal. 63, 26 Pac. Rep. 788.
VI. REVIEW OF THE SYSTEM.
$ 99. This system as a whole.
The foregoing summary of doctrines and rules presents the system of water rights, based upon prior and subsequent appropriations of streams and lakes situated within the public domain, or lands belonging to the United States, as that system, has been built up by judicial decisions upon the foundation of local customs recognized and ratified by the legislation of congress. It is plain, upon an examination and comparison of the special rules formulated in the preceding sections, that the system, in theory at least, furnishes all the possible protection for the rights of subsequent and successive claimants after it has once admitted that a party can, by prior appropriation, obtain a prior and exclusive right to the water of a stream or lake, limited and measured only, in its extent, by the actual needs of the particular purpose for which the appropriation is made. The system places an obstacle in the way of a prior appropriator's obtaining an exclusive control of the entire stream, no matter how large; and secures the rights of subsequent appropriators of the same stream, by requiring that a valid appropriation shall be made for some beneficial purpose, presently existing or contemplated; and by restricting the amount of water appropriated to the quantity needed for such purpose; and by forbidding any change or enlargement of the purpose, which should increase the quantity of water diverted under the prior appropriation, to the injury of subsequent claimants; and by subjecting the prior appropriation to the effects of an abandonment, by which all prior and exclusive rights once obtained would be lost. By these means, a party is, in theory at least, prohibited from acquiring the exclusive control of a stream, or any part thereof, not for present and actual use, but for future, expected, and speculative profit or advantage. In other words, a party cannot obtair the monopoly of a stream, in anticipation of its future use and value to miners, farmers, or manufacturers.
$ 100. Defects of the system.
While the theory thus appears to be admirable, the practical workings of the system may be attended with some difficulties, and they have certainly involved a great amount of litigation. When a prior appropriator has actually established himself on a stream, and is diverting its waters by ditches, an attempt to enforce the rights of a subsequent claimant may be difficult, and may require an expensive and protracted controversy. The prior appropriator is certainly placed in a position of great ad. vantage in maintaining his own claims, even though unfounded and unlawful, against those who are seeking to enforce their sub. sequent and lawful rights to use the water of the stream. But the principal defect of the system, the one capable of working, the greatest injustice, is inherent in the very theory itself, in its fundamental conception. This defect is the total absence of any limit to the extent of a prior appropriation,—to the amount of water which may be taken, -except the needs of the purposes for which it is made. The prior appropriator, in order to carry out a purpose regarded by the law as beneficial, of great magnitude, -such, for example, as an extensive system of hydraulic mining, or the irrigation of a large tract of farming lands, or, doubtless, the supply of a municipality,-may divert and consume, without returning to its natural channel, the entire water of a public stream, no matter what may be its size or length, or the natural wants of the country through which it flows. Furthermore, this appropriation may be made by a party who owns no land upon the banks of the stream, and for a purpose situated at any distance from the stream itself, far beyond the region to which the stream naturally belongs, and which would natu
rally receive its benefits. In this manner the natural benefits of a stream to the lands situated upon its bank throughout its entire length may be completely destroyed, and the natural rights of all persons who should afterwards settle and purchase lands adjoining the stream may be totally ignored, disregarded, and abrogated by such a prior appropriation.
§ 101. Presumption that stream was on public
land. This first branch of the discussion may be appropriately ended by the statement of an important point just decided by the supreme court of California, that, in the absence of all evidence, it will be presumed that a stream, at the time when its waters were appropriated, was a public stream, and all the lands on its banks were public lands of the United States. There had been several successive appropriations of a stream called “Lytle Creek” by different parties. The court say: "There is nothing in the pleadings or findings to indicate that, when all the waters of Lytle creek were appropriated, any of the lands by or through which the creek flows had passed into private ownership. It must be presumed, therefore, that such lands were public lands of the United States, and the rights to the water of Lytle creek acquired by prior appropriations were confirmed by the act of congress of 1866. The court found that the settlement on government land by defendant was made after the act of 1866 took effect. Any rights which he might acquire, therefore, from the government, would be subject to the previously confirmed appropriations of the water.”! This action was brought by a prior appropriator to restrain the defendant, a subsequent appropriator, from an alleged unlawful diversion. It appeared that there were other distinct and separate appropriators who were not parties to the suit. The court made the following important ruling
1 Lytle Creek W. Co. v. Perdew, 2 Pac. Rep. 732.