In her complaint appellant alleged that she was the owner of a certain tract of land situated in Ada county; that the respondent had partially constructed a dam and reservoir on her land and impounded water therein ; that the water so impounded overflows her land; that respondent claims an easement in her land for reservoir purposes, but the same is unlawful and wholly without right. Respondent in its answer admitted that it had constructed a reservoir and overflowed the land of appellant with the water impounded therein. By way of defense respondent alleged that while the land in controversy was unoccupied government land it had filed in the United States land office at Boise, Idaho, a map of its proposed reservoir, together with all other data required by the statute and regulations of the Department of the Interior, which map was approved by the Secretary of the Interior; that it constructed its reservoir and thei’eafter filed in the land office a map of amended definite location showing the reservoir as actually constructed, which included a smaller area than that embraced in the original application and also presented proof of such construction as required by the regulations of the *334department; that thereafter the Secretary of the Interior approved the map of amended definite location and accepted the proof of the completion of the reservoir, and that appellant made entry of the land and received patent therefor subject to the right of way of respondent.
The appeal is from the judgment for defendant.
Appellant contends that the right of way for reservoir purposes, under the act of March 3, 1891, 26 Stats, at L. 1101, 1102, U. S. Comp. Stats., sees. 4934-4936, 8 Fed. Stats. Ann., pp. 803-805, must be for purposes of irrigation; that the evidence showed that respondent had not used the waters impounded in the reservoir for a period extending over many years and that it had therefore forfeited its right to maintain the reservoir. On the other hand, respondent contends that the right to have a forfeiture declared can be exercised only by the United States government either by means of a judicial proceeding brought for that purpose or by some appropriate act of Congress. We do not think that either contention can be considered in view of the condition of the record. The grant of right of way for reservoir, under the congressional act before mentioned, is one in praesenti, subject to forfeiture for failure to complete the works within five years after the location of the same. (United States v. Whitney, 176 Fed. 593.) In this ease it is said: “This requirement being in the nature of a condition subsequent, the rule undoubtedly is that failure to comply therewith does not operate ipso facto to divest the grantee of the title and reinvest the grantor therewith, but that to be effectual, the default must be followed with a declaration of forfeiture by some competent authority, and, the grant here being of a public nature, such declaration can be made only by an act of Congress, or in an appropriate judicial proceeding.” (See, also, Union Land & Stock Co. v. United States, 257 Fed. 635, 168 C. C. A. 585; Schulenberg v. Harriman, 21 Wall. 44, 22 L. ed. 551.) The same principle applies where it is claimed that the right of way *335has been forfeited for failure to use it for the purposes for which it was granted.
Waiving the question as to the capacity of appellant to bring an action in a state court to have a forfeiture declared, we think that it is necessary that a complaint seeking such-relief set out the grounds upon which a forfeiture is sought. Forfeitures are not favored by the law, and where it is sought to enforce a forfeiture, the defendant is entitled to be informed by the pleadings as to the exact ground upon which it is claimed. Under the pleadings of the case at bar the appellant merely alleged that the claim of respondent of an easement for reservoir purposes was one unlawful and without right.
The answer of respondent alleging that it owned the right of way by compliance with the act of Congress above mentioned presented a complete defense to the cause of action alleged in the complaint. Appellant made no allegation in her complaint which would justify her in attempting to show that the right of way had been forfeited by breach of condition subsequent. It is true that our statute does not provide for a reply and that affirmative defenses are by statute deemed to be denied. But since a failure to use the right of way for the purposes .for which it was granted does not ipso facto effect a forfeiture, proof that respondent had failed to use the reservoir for irrigation purposes for a long number of years would not of itself defeat its title to the right of way for the reservoir. Its title continues until there has been a judicial declaration of forfeiture, or until there has been a re-entry by one invested with the right of re-entry.
The judgment is affirmed, with costs to respondent.
Dunn and Lee, JJ., concur. Budge, J., did not sit at the hearing or take any part in the opinion. McCarthy, J., being disqualified, did not sit at the hearing or take any part in the opinion. (December 31, 1921.)