I cannot concur in the conclusion reached that Kents Lake Reservoir Company had not forfeited any of the 1,660 acre feet decreed to it to be stored in the South Fork of Beaver River under the 1931 decree. That decree had stood for eleven years, with a priority date of 1890. The limiting dates of storage are between April 1st and June 30th of each year, with the further limitation that no storage could be made when the flow of water of Beaver River at the government gauging station at the mouth of Beaver Canyon was below 164 second feet.
The Rocky Ford Irrigation Company had a right to store 25,447 acre feet between October 1st of each year and June 30th of the following year, and direct diversion rights of 120 second feet and 150 second feet during the periods, respectively, from July 1st to September 30th, with a priority date of 1909, and from March 15th to June 30th, with a priority date of 1907.
At no time since the date of the decree in 1931 had Kents Lake provided a storage capacity for or stored more than 950 acre feet. There were three years of the period when there was no water available for storage. Under Ullrich's testimony there was only one year, 1937, when there was water enough to equal the storage capacity of 950 acre feet. *Page 216 Under Lofgren's testimony there were six years of the period when the estimated run-off would have exceeded the 950 acre feet. With the lapse of eleven years, the fluctuating quantities of water available, and at the end of the period to make an application for a change of point of diversion and storage from the designated place, evidences an abandonment or forfeiture of any right above the capacity provided. It may have been uncertainty of available storage, or expense in excess of economical cost, or impracticability of increasing the storage capacity at the place designated; but whatever the persuading factors, the fact remains no steps were taken to protect the right above 950 acre feet.
Except as herein indicated, I concur in the conclusions reached by Mr. Chief Justice Wolfe.