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Show PRESCRIPTION 359 benefit of its use in such a substantial manner as to notify them that their rights are being invaded.502 "To take the water when the prior appropriator has no use for it, invades no right of his, and cannot even initiate a claim adverse to him."503 (4) Uninterrupted and continuous use of water for more than the prescriptive period raises a presumption that the use is adverse and under claim of title.S04 But in an early Oregon case, while acknowledging that "The adverse use of water from a stream for a period of ten years raises a presumption of title to the same as against a right in any other person, which might have been, but was not, asserted," the supreme court subsequently cautioned that "ten years' use of the water cannot raise a presumption against a prior appropriator that the use is adverse, without the additional showing that the other's right was invaded."505 (5) The use by a California riparian owner of his reasonable share of the water of a stream is not adverse to those located above and below him.506 "In the absence of a showing that the upper owner is using the water under a claim of prescriptive right the lower owner has the right to presume that such owner is only taking that to which he is entitled as a riparian owner by virtue of his riparian right."507 The riparian situation in California with respect to prescription has been previously touched upon in the subtopics "Presumption of notice" and "Acquiescence," under "Open and Notorious Use," and will be further discussed later under "Establishment of Prescriptive Title-Adverse Parties-Riparian proprietor." Hostility.-(1) To be adverse to the rightful owner, the use of the water must be hostile to the title of that owner.508 (2) To be hostile, the adverse use must actually deprive the rightful owner of water to which he is entitled when he needs it, as brought out earlier, or ^Mountain Homelrr. Dist. v. Duffy, 79 Idaho 435, 443, 319 Pac. (2d) 965 (1957). s03Talbott v. Butte City Water Co., 29 Mont. 17, 26-27, 73 Pac. 1111 (1903). "Limitation did not begin to run from the date water was used by defendants; but from the date their use deprived plaintiffs of their appropriated water, which was in 1945." Bounds v. Carrier, 53 N. Mex. 234, 245, 205 Pac. (2d) 216 (1949); accord, Ison v. Sturgill, 57 Oreg. 109, 121, 109 Pac. 579, 110 Pac. 535 (1910); initiation of adverse possession of right of way over lands of a settler on the public domain, Allen v. Magill, 96 Oreg. 610, 619, 189 Pac. 986,190 Pac. 726 (1920). SO4Pflueger v. Hopple, 66 Idaho 152, 155, 156 Pac. (2d) 316 (1945). "Respondent's uninterrupted and continuous use of the East Ditch for more than the prescriptive period of five years raises the presumption that his use was adverse and under a claim of right. * * * [A] nd here there was no evidence of parol or other license to overcome this presumption. Ramseyer v. Jamerson, 78 Idaho 504, 511, 305 Pac. (2d) 1088 (1957). nsIson v. Sturgill, 57 Oreg. 109,119, 122, 109 Pac. 579, 110 Pac. 535 (1910). soe Turner v. Eastside Canal & In. Co., 168 Cal. 103,110,142 Pac. 69 (1914). 507Pabstv. Finmand, 190 Cal. 124, 128-129, 211 Pac. 11 (1922). 5WAlta Land & Water Co. v. Hancock, 85 Cal. 219, 226, 24 Pac. 645 (1890); Moms v. Bean, 146 Fed. 423, 433 (C.C.D. Mont. 1906); Toyaho Creek lrr. Co. v.Hutchins, 21 Tex. Civ. App. 274, 280-281, 52 S.W. 101 (1899, error refused). |
