Alamosa Creek Canal Co. v. Nelson

Mr. Justice Gabbert

concurring specially:

I concur in the judgment of affirmance; but on the question of abandonment, I do so for the reason that, in my opinion, the testimony bearing on the subject of non-use of water, and other acts of the claimants through the Molino ditch subsequent to the decree, clearly establishes abandonment on their part, as found by the trial court, without regard to their use of water or capacity of their ditch prior to such decree. For this reason the evidence on the subject of abandonment, objected to by appellants, could not have been prejudicial, and the question of its competency is, therefore, -immaterial.