298 IRRIGATION IAK.MIXG. 



It is not believed that a user for any length of time 

 will give title by prescription or limitation as against the 

 Government. 



Union Ms. M. Co. rtt. Ferris, 2 Saw. 176 



Matlhrus <>-. I-Vnva, 4") Cal. 51 



Ogbnrn r.-i. (< nuer, 46 Id. 340 



Van Sickle r#. Mains, 7 Xev. 24t 



The right in this respect is of much the same nature 

 as the possessory right to public lands, and when aban- 

 doned it reverts to the Government and is subject to 

 appropriation by anyone else ; or he may return, reap- 

 propriate and acquire all his original rights, if the claim 

 of no one else intervenes. 



Tucker rs. Jones, 19 Pac. Rep. (Mont.) 571 



It was never designed that these rights should be 

 held without use for beneficial purpose, and in this a 

 " water right," so-called, lacks one of the qualities of 

 realty, or title to the land. It is probable that any one 

 possessing a water right and failing to use the same for 

 a continuous period equal to that of the statute of limi- 

 tations, would lose the right, but if at any time during 

 that period he had used it the right would still exist ; 

 and herein is a defect in the law, for no one having 

 acquired so valuable a right should be permitted to with- 

 hold the use from others, unless he use the same him- 

 self, and even if the law would permit others to con- 

 demn the right the remedy would, in most cases, be 

 tedious, expensive, and barren of benefit. The principle 

 herein announced, that the existence of the right de- 

 pends upon the user, is in consonance with the constitu- 

 tion, and all reasoning upon the subject ; but the courts, 

 by way of construction, give the possessor of the riirht 

 the privilege of non-user, and thus nullify the spirit of 

 the law. The loss of his right is made to depend upon 

 his intention, i. e., abandonment, when he should be 

 held to a reasonably continuous use of the right, or allow 



