478 IRRIGATION FARMING. 



The right in this respedl 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 any one else; or he may return, 

 reappropriate and acquire all his original rights, if the 

 claim of no one else intervenes. 



Tucker vs. 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 

 limitations 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 defedl in the law, for no one 

 having acquired so valuable a right should be per- 

 mitted to withhold the UvSe from others, unless he use 

 the same himself, and even if the law would permit 

 others to condemn 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 depends upon the user, is in consonance with 

 the Constitution, and all reasoning upon the subject; 

 but the courts, by way of construc5lion, give the 

 possessor of the right 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., aban- 

 donment, when he should be held to a reasonably con- 

 tinuous use of the right, or allow it to revert to the 

 pubhc. In the present condition of the law in Colo- 



