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Show 356 LOSS OF WATER RIGHTS IN WATERCOURSES Presumption of knowledge.-In the absence of some special statutory provision to the contrary, said the Idaho Supreme Court, it is not necessary that the true owner of the water right shall have had actual knowledge or notice of the adverse claim.483 This is the case, provided the circumstances are such that actual knowledge can be implied.484 The invasion of a water right may be so open and notorious and otherwise of such a nature as to impute knowledge.485 Therefore, open and notorious use-a use of water that is not secret or clandestine, but is open, visible, and continuous-raises a presumption of knowledge on the part of the true owner of the water right which becomes the equivalent of actual knowledge; and such presumption may be rebutted or overcome by positive evidence.486 If the circumstances are sufficient to raise a presumption of knowledge on the part of the true owner, and he "fails to look after his interests and remains in ignorance of the claim, it is his own fault."487 Where these requirements are met, the court is justified in finding that the record owner had constructive knowledge of the adverse use. For example, the court might presume knowledge from a long-continued use of the water (in this case, for more than 20 years) by parties who exercised the usual acts of ownership and diverted the water with the use of facilities that not only could be seen but actually were seen by representatives of the parties against whom the adverse right was claimed.488 Acquiescence.-(I) In various cases over the years, western courts have used the multiple term "knowledge and acquiescence" in designating the failure of the rightful owner of a water right to object by word or deed to a use of water adverse to him that he knows about or must be presumed to have known about.489 In a very early case, the California Supreme Court stated that had 656, 676, 133 Pac. (2d) 601 (1943); Mitchell v. Spanish Fork West Field Irr. Co., 1 Utah (2d) 313, 317, 265 Pac. (2d) 1016 (1954); Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 415, 100 Pac. (2d) 124, 102 Pac. (2d) 745 (194Q); " * * * with the knowledge of the owner while he was able in law to assert and enforce his rights * * *," Brand v. Lienkaemper, 72 Wash. 547, 549, 130 Pac. 1147 (1913). wPflueger v. Hopple, 66 Idaho 152, 157-158, 156 Pac. (2d) 316 (1945). "There is no requirement in the law that the record owner must have actual knowledge of the claims of the adverse claimant." Wood v. Davidson, 62 Cal. App. (2d) 885, 889-890, 145 Pac. (2d) 659 (1944). 484Northern Cal. Power Co., Consol. v. Flood, 186 Cal. 301, 306, 199 Pac. 315 (1921). 485 Oam v. Hoefling, 56 Cal. App. (2d) 396, 402, 132 Pac. (2d) 882 (1942). 4*6Fairview v. Franklin Maple Creek Pioneer Irr. Co., 59 Idaho 7, 12-14, 79 Pac. (2d) 531 (1938); Downie v. Renton, 167 Wash. 374, 377-378, 9 Pac. (2d) 372 (1932). 487 Woody. Davidson, 62 Cal. App. (2d) 885, 889-890, 145 Pac. (2d) 659 (1944). 488Evans Ditch Co. v. Lakeside Ditch Co., 13 Cal. App. 119, 129, 108 Pac. 1027 (1910). 489Smith v. Green, 109 Cal. 228, 233-235, 41 Pac. 1022 (189'5); Haines v. Marshall, 67 Colo. 28, 32, 185 Pac. 651 (1919); Kuhlmann v. Platte Valley Irr. Dist., 166 Nebr. 493, 512, 89 N.W. (2d) 768 (1958); Union Mill & Min. Co. v. Dangberg, 81 Fed. 73,91 (C.C.D. Nev. 1897); Smith v. North Canyon Water Co., 16 Utah 194, 201-202, 52 Pac. 283 (1898); Downie v. Renton, 167 Wash. 374, 377-378, 9 Pac. (2d) 372 (1932) |
