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 limited 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 by 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.3

1 Davis v. Gale, 32 Cal. 26. [In Lowden v. Frey, 67 Cal. 474, s. 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. Under such circumstances, the position of the plaintiff, that the right to the use of water for mining pur

2

poses ceases with the exhaustion of the mine for which it was appropriated,' has no application." It is not stated what would be the effect if the water were appropri ated for use in one particular mine, and that mine became exhausted.] 2 Atchison v. Peterson, 1 Mont. 561.

See ante, § 52.

§ 90. 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.' A failure to use for a time is competent evidence of abandonment; and if such non-user continues for an unreasonable 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.2 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.3]

VI. REVIEW OF THE SYSTEM.

§ 91. 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 do

1 Union Water Co. v. Crary, 25 Cal. 504; Smith v. Logan, 18 Nev. 149. Five years' adverse possession is sufficient to 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 POM.RIP.-10

title to realty under the statute of limitations. Dodge v. Marden, 7 Or. 456.

2 Sieber v. Frink, 7 Colo. 148, s. c. 2 Pac. Rep. 901. And see Dorr v. Hammond, 7 Colo. 79, s. c. 1 Pac. Rep. 693.

3 Ledu v. Jim Yet Wa, 7 Pac. Rep. 731.

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main, 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 obtain the monopoly of a stream, in anticipation of its future use and value to miners, farmers, or manufacturers.

§ 92. 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 advantage in maintaining his own claims, even though unfounded and unlawful, against those who are seeking to enforce their subsequent 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 naturally 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.

§ 93. 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 concerning the necessary parties under such circumstances: "In an action by an appropriator of the water of a certain stream to restrain a defendant from diverting the same, when the court finds that the plaintiff has a separate title to the use of all water for a certain length of time out of a longer period, (namely, 'for

1

1Lytle Creek W. Co. v. Perdew, 2 Pac. Rep. 732, (decided February 12, 1884.)