concurring in the result.
The doctrine of resumption of use is antiquated and without continued viability in light of the full appropriation of most water systems in Idaho. Therefore, I feel it is time to abandon this once useful doctrine. However, the result reached would be the same in this case. Therefore, I concur in the result reached by the majority.
ANALYSIS
In Idaho, a water right is forfeited after a five-year period of non-use. Idaho Code § 42-222(2) (2002). The statute states a water right holder may avoid forfeiture upon a: “proper showing ... of good and sufficient reason for nonapplication to beneficial use of such water for ... five (5) years.” Id. Upon such a showing: “the director of the department of water resources [may] grant an extension of time ... for forfeiture of title for nonuse” for up to five years. Id. Extension of the forfeiture period may only be granted when it will not impair existing water rights. Id.
Previous Idaho case law suggests, in dicta, that resumption of use, a common law defense to abandonment, may apply in cases of statutory forfeiture. See, e.g., Zezi v. Lightfoot, 57 Idaho 707, 68 P.2d 50 (1937); Carrington v. Crandall, 65 Idaho 525, 147 P.2d 1009 (1944); Wagoner v. Jeffery, 66 Idaho 455, 162 P.2d 400 (1945). Although somewhat obfuscated by prior case law, careful scrutiny of Idaho Code § 42-222(2) demonstrates that the legislature did not include the antiquated doctrine of resumption of use as a defense to forfeiture.
If a statute is clear, this Court need not engage in an exercise of statutory construction. Hamilton ex rel. Hamilton v. Reeder Flying Service, 135 Idaho 568, 572, 21 P.3d 890, 894 (2001). The statute will be given its plain meaning and this Court will not add to, or take away from, the unambiguous statute by means of statutory construction. Canal/Norcrest/Columbus Action Committee v. City of Boise, 186 Idaho 666, 670, 39 P.3d 606, 610 (2001). Further, the legislature may repeal the common law, either expressly or by enacting a statute that is inconsistent with the application of the common law. Olsen v. J.A Freeman Co., 117 Idaho 706, 718, 791 P.2d 1285, 1297 (1990). Common law remains in effect only to the extent it is not inconsistent with the relevant statute. Id. at 719, 791 P.2d at 1299.
Application of the resumption of use doctrine is inconsistent with I.C. § 42-222(2), which states the method by which a water *847right holder may avoid forfeiture is to request an extension of time. The plain meaning of the statute does not support the conclusion that resumption of use is a defense to statutory forfeiture; nor can resumption of use be read into or inferred from the statute. By expressly identifying extension as the sole defense to forfeiture, the legislature eliminated resumption of use as a defense to forfeiture.
In addition to the legislature’s intent to eliminate resumption of use as a defense to forfeiture through the plain language of I.C. § 42-222(2), the doctrine is antiquated and not viable in Idaho’s current water rights system. As stated by this Court in Jenkins:
[i]f a water right has indeed been lost through abandonment or forfeiture, the right to use that water reverts to the state and is subject to further appropriation. Other parties may then perfect a water right in those waters. Hence a person making a subsequent appropriation will be injured by resumption of the abandoned or forfeited water right. If a senior right has been abandoned or forfeited, the priority of the original appropriator is lost, and the junior appropriators move up the ladder of priority. If a senior right which had been forfeited or abandoned were allowed to be reinstated through a transfer proceeding, clearly injury would result to otherwise junior appropriators. Priority in time is an essential part of western water law and to diminish one’s priority works an undeniable injury to that water right holder.
Jenkins v. State Dept. of Water Resources, 103 Idaho 384, 387-88, 647 P.2d 1256, 1259-60 (1982) (citations omitted). Due to the fact that most, if not all, of Idaho’s water is appropriated, there are few, if any, practical opportunities to apply resumption of use. Allowing continued application of the doctrine is undesirable because any unused water in Idaho will be quickly put to beneficial use by junior appropriators, who would be injured by a resumption of use by a former senior user who forfeits their water right. Justice SCHROEDER concurs.