5. ment.

Intention for instance, is the very essence of abandonHall v. Lincoln, 10 Colo. App., 360-364.

b. Non-use.

See Evidence, Sec. 178 b. See Easement, Sec. 168.

1. "Non-user alone, at least short of the period of the statute of limitations, is not sufficient to prove an abandonment, but non-use continued for a considerable length of time, coupled with other acts of a character tending to show an intention on the part of the owner not to resume, or repossess himself of the thing whose use he relinquished, may constitute an abandonment.” Alamosa C. C. Co. v. Nelson, 42 Colo. 140-143, 93 Pac. 1112; People v. Farmers H. L. C. Co., 25 Colo. 202, 54 Pac. 626; Cooper v. Shannon, 36 Colo. 98-103, 85 Pac. 175.

White v. Nuckolls, 49 Colo. 170, 112 Pac. 329.

2. "A failure to use for a time is competent evidence on the question of abandonment; and if such non-user be continued 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." Sicber, et al. v. Frink, 7 Colo. 148-154, 2 Pac. 901.

3. "But * * * * a corporation may not divert water from a stream and make beneficial use of a portion thereof, and as to the residue so diverted never make any use whatever, for over twenty years from the time of the original diversion, for more than eighteen years from the time of an additional diversion, and for more than nine years after its right to the quantities thereby diverted have been judicially established, and then be heard to assert its claim to such excess after subsequent appropriators had continuously, adversely, openly and notoriously been enjoying the use thereof for such length of time." New Mercer D. Co. v. Armstrong, 21 Colo. 357-363, 40 Pac. 989.

4. "Non use, alone, is not sufficient evidence thereof." New Mercer D. Co. v. Armstrong, 21 Colo. 357-364, 40 Pac. 989.

5. Syl. "A perpetual right to the use of water from an irrigation ditch, acquired or reserved under a contract, constitutes an easement in the ditch, which cannot be lost by non-user alone short of the period of limitation for actions to recover real property." People ex rel. Standard v. Farmers H. L. Co., 25 Colo. 202, 54 Pac. 626; Wyatt v. Larimer & Weld I. Co., 18 Colo., 298, 33 Pac. 144.

Sec. 4. Evidence.

See Evidence, Secs. 178-194.

Syl. "Abandonment is a matter of intention. It is peculiarly within the province of a trial court to determine from all the facts and circumstances of each particular case whether the abandonment has or has not taken place." Cooper v. Shannon, 36 Colo. 98-99, 85 Pac. 175.

Sec. 5. Ditch.

"A distinction must be observed between the abandonment of an irrigating ditch and the abandonment of the right to the use of water for irrigation.

* * * *

*

Nichols v. McIntosh, 19 Colo. 22. 34 Pac. 278." New Mercer D. Co. v Armstrong, 21 Colo. 357-364; 40 Pac 989; Greer v Heister, 16 Colo. 306, 26 Pac. 770.

Sec. 6. Milling Priority.

"In case of abandonment of the milling priority, the water thus returned to the stream does not belong to senior appropriators, the headgates of whose ditches are situate on the stream above the point of discharge of water from the millrace into the river, but that the same belongs to appropriators from the stream below such point of discharge, in the order of their priority." Cache la Poudre R. Co. v. Water S. & S. Co., 27 Colo. 532-536-537, 62 Pac. 420; Cache la Poudre Irr. Co. v. Water S. & S. Co. 25 Colo. 161-168, 53 Pac. 331; Windsor Co. v. Hoffman Co., 48 Colo. 82-86-87. 109 Pac. 422.

Sec. 7. Millrace.

See Appropriation, Sec. 56b.

Sec. 8. Repairs-Failure to make.

"Failure **** to make repairs or contribute toward repairs upon the ditch **** would not alone prove abandonment; nor would the fact that for some years. . . . . . . . did not use her share of the water, and during one year used none at all, even if the non-user was voluntary with her, point in the direction of abandonment." Butterfield v. O'Neill, et al., 19 Colo. App. 7-10, 72 Pac. 810; Putnam v. Curtis, 7 Colo. App. 437-443, 43 Pac. 1056.

Sec. 9. Right to water cannot be revived after abandonment.

Syl. "Upon abandonment of the construction of a proposed canal without intention of resuming, all incipient rights lapse and revert to the public; and are not thereafter capable of being sold or transferred." Colo. L. & W. Co. v. Rocky Ford C. R. L. L. & T. Co., 3 Colo. App. 545, 34 Pac. 580.

Sec. 10. Subsequent to decree.

An abandonment, subsequent to a decree only, can be shown. The decree is res adjudicata as to the amount of water used prior thereto. O'Brien v. King, 41 Colo. 487-490, 92 Pac. 945; Platte Valley I. Co. v. Central Trust Co., 32 Colo. 102, 75 Pac. 391; Water S. & S. Co. v. Larimer & Weld R. Co., 24 Colo. 322, 51 Pac. 496; Ditch Co. v. Ditch Co., 22 Colo. 115, 43 Pac. 540; Wadsworth D. Co., et al., v. Brown 39 Colo. 57-61, 88 Pac. 1060.

Sec. 11. Use of abandoned water.

"It has been determined, where an appropriation of water for a use that wholly absorbs it, as for irrigation, is abandoned and allowed to flow into the stream above the head-gates of all the ditches, or where the stream, from whatever cause, has

at such point received an increase in volume, the right to the use of the increased quantity is in accordance with the priorities of the several ditches. Kinney on Irrigation, Secs. 183, 259." Cache la Poudre I. Co. v. Water S. & S. Co., 25 Colo. 161-169-170, 53 Pac. 331.

Although the above may be the rule of law under the particular state of facts of that case, yet, abandoned water may, under certain circumstances, be appropriated by junior appropriators.

It has been held that after water has been used by a millrace and returned to the stream, thus in effect being abandoned, it cannot be appropriated by or purchased by senior appropriators above the point of diversion for the mill-race, but it can be appropriated by junior appropriators below. Cache la Poudre I. Co. v. Larimer & Weld R. Co., 25 Colo. 161-170. 53 Pac. 331.

See Appropriation, Sec. 56.
See Sec. 6.

Sec. 12. What can be abandoned.

و

"On the contrary, the plaintiffs claim that the right to the use of water in dispute never belonged to them (the defendants). If it never existed it could not be adandoned." Alamosa C. C. Co. v. Nelson, 42 Colo. 140-147, 93 Pac. 1112; Conley et al. v. Dyer, et al., 43 Colo. 22-28, 95 Pac. 304; Ditch Co. v. Ditch Co., 22 Colo. 115-120, 43 Pac. 540; Crawford C. D. Co. v. Needle & R. D. Co., 49 Colo. 362, 114 Pac. 655.

"The term, (abandonment) can apply only to completed appropriations of water. To abandon a water right presupposes possession thereof prior, and to, the time of abandonment." Drach v. Isola, 48 Colo. 134, 145, 109 Pac. 748

Sec. 13. When complete.

See Sec. 4.

It was held in Beaver D. R. Co. v. St. Vrain R. Co., 6 Colo. App. 130, 40 Pac. 1066, that an abandonment was not

complete until an appropriation of the abandoned water had been made.

Sec. 14. Who may raise question.

See State Officers, Sec. 278.