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Show 358 LOSS OF WATER RIGHTS IN WATERCOURSES Adverse and Hostile Use In opinions in various cases, adverse use and hostile use have been included in lists of elements necessary to acquire a prescriptive title-in some instances separately, and in others as though they were synonymous.496 In a 1957 case, the Montana Supreme Court (after listing what the proof must show in order to acquire a water right by prescription) said, "Assuming arguendo, defendants have established the first four elements, have they established the fifth element, that of hostility or adverse user, which is basically the fundamental issue in this case?" [Emphasis added.]497 Adverse use.-(I) To perfect a prescriptive right, the use of the water must have been adverse to the right of the rightful owner.498 (2) "To say that a use is adverse is equivalent to the declaration that it is open, notorious, under a claim of right and with the knowledge of the owner of the legal title."499 To be adverse, the use of water by the adverse party must interfere with the use thereof by the rightful owner;s0° and such interference must result in depriving him of the water when he has actual need of it.501 This appears to be the consensus of most western authorities. But modifications have been declared or intimated by some court decisions in California and Texas, as is shown later under "Statute of Limitations-Statute set in motion." (3) The adverse use must in fact conflict with the true owner's right; hence it cannot be initiated until the owners of the water right are deprived of the with the beneficial use to which said waters were put by the plaintiffs during said period of time." A9*Kraemer v. Kraemer, 167 Cal. App. (2d) 291, 334, Pac. (2d) 675, 684-685 (1959); Krumwiede v. Rose, 177 Nebr. 570, 129 N.W. (2d) 491, 497-498 (1964); Franktown Creek In. Co. v. Marlette Lake Co., 77 Nev. 348, 364 Pac. (2d) 1069 (1961); Ison v. Sturgill, 57 Oreg. 109, 118, 109 Pac. 579, 110 Pac. 535 {\9\Q)\ Smith v. North Canyon Water Co., 16 Utah 194, 201-202, 52 Pac. 283 (1898); Rhoades v. Barnes, 54 Wash. 145, 148, 102 Pac. 884 (1909). 497Havre In. Co. v. Majerus, 132 Mont. 410, 415, 318 Pac. (2d) 1076 (1957). 49tHubbs & Miner Ditch Co. v. Pioneer Water Co., 148 Cal. 407, 416-417, 83 Pac. 253 (1906); Gross v. MacCornack, 75 Ariz. 243, 248, 255 Pac. (2d) 183 (1953);Kuhlmann v. Platte Valley In. Dist., 166 Nebr. 493, 512, 89 N.W. (2d) 768 (1958). *"Johnstone v. Gloster, 49 Cal. App. 750, 754, 194 Pac. 504 (1920). The adverse use and enjoyment which will give title by prescription to an easement is substantially the same in quality and characteristics as the adverse possession which will give title to real estate. Kuhlmann v. Platte Valley In. Dist., 166 Nebr. 493, 512, 89 N.W. (2d) 768 (1958). S00Headv. Menick, 69 Idaho 106, 108, 203 Pac. (2d) 608 (1949). 501 Talbott v. Butte City Water Co., 29 Mont. 17, 26-27, 73 Pac. 1111 (1903). In Farwell v. Brisson, 66 Wash. 305, 308, 119 Pac. 814 (1911), the evidence was held sufficient to sustain findings, inter alia, that defendant's diversion of water had been made "adversely to the plaintiffs and to all the world, and has been made at times when the plaintiffs were desirous of irrigating their said lands, and were demanding said waters for use in the irrigation thereof." |