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Show COLLATERAL QUESTIONS RESPECTING WATERCOURSES 97 The time element.-The time element is less important in itself than in the opportunity it affords for creation of new conditions the impairment or destruction of which would be inequitable, if the old ones were restored. The periods in which new conditions have been held to be sufficiently permanent to justify their retention vary considerably. Thus, in one case, a failure to restore the old conditions within slightly more than 3 years, within which time other rights had intervened, was held to have forfeited the right to make the restoration.387 In another case, the elapsed time was 30 years,388 and in still another, it was most of a period of 90 years.389 The opinion in an early Oklahoma case says that where water has flowed in its accustomed, originally artificial channel from time immemorial, there is an ancient natural water- course.390 The question of prescription.-Prescription is mentioned in some of the cases in connection with the basis of the right to retain the new channel in preference to the old. Accrual of an easement by prescription may arise against persons unfavorably affected by the change from a natural to an artificial channel by adverse user for the period prescribed by the statute of limitations, but not against persons favorably affected.391 A contention in an Oklahoma case that a canal had become a watercourse by prescription was rejected by the supreme court because there was no adverse possession or continuous invasion of the other's rights as would be necessary to establishment of a prescriptive easement. The length of the prescriptive period appears to have suggested itself to the courts in some cases as an appropriate time within which, under the circumstances of the instant controversy, the right to restore the original channel conditions should have been exercised-for reasons other than adverse use, but for periods analogous to the statute of limitations. Thus, the Oregon Supreme Court held that as an opening of certain artificial channels had been acquiesced in by all parties on the stream for a period longer than that prescribed by the statute of limitations, the channel had become fixed.393 Shortly afterward, the Washington Supreme Court approved the principle that one who diverts a stream into an artificial channel and suffers it to remain there for a period exceeding the statute of limitations, is estopped, as against a person making beneficial use of the water, from returning it to the original stream to this person's injury.394 The court went on to say that the user does Oreg. 1, 42-43, 288 Pac. (2d) 796 (1955). 381Johnk v. Union Pacific R.R., 99 Nebr. 763, 766-769, 157 N. W. 918 (1916). 3asMatheson v. Ward, 24 Wash. 407, 410-411, 64 Pac. 520 (1901). 389 Gardner v.Dollina, 206 Oreg. 1, 42-43, 288 Pac. (2d) 796 (1955). 390 Chicago, R. I. & P. Ry. v. Groves, 20 Okla. 101, 115-116, 93 Pac. 755 (1908). 39iJohnk v. Union Pacific R.R., 99 Nebr. 763, 767-768, 157 N. W. 918 (1916). 392 Branch v.Altus, 195 Okla. 625, 627, 159 Pac. (2d) 1021 (1945). 393Hbugh v. Porter, 51 Oreg. 318, 415, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). 394Hollett v. Davis, 54 Wash. 326, 332-333, 103 Pac. 423 (1909). 450-486 O - 72 - 9 |