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Show PRESCRIPTION 363 (2) The mere exercise of a riparian right in States that give full recognition to the riparian doctrine-notably California-can never be hostile to riparian landowners below who hold equally paramount water rights.531 It is adverse to the rights of the lower riparian owner only when there is an actual interference with the rights of the lower owner.s32 (3) A use by a downstream claimant of water that has left the premises of an upstream appropriator or riparian proprietor ordinarly does not interfere with the flow before it leaves such premises. Hence it generally invades no right of the upstream claimant and usually affords him no ground for an action.533 Permissive use distinguished.-(\) "A prescriptive right cannot be founded upon a use permissive in character."534 "In the instant case," said the California court in Heinkel v. McAllister, "the arrangement was a neighborly arrangement or an accommodation without any agreement or understanding that it was to continue for any definite time. A reasonable inference is that the parties understood the license to be terminable at will."535 (2) Obviously, a use of water cannot be adverse and hostile to the claim of the rightful owner if it is made with his permission; and so a prescriptive right to the use of water cannot be acquired by the use of such water with the consent or permission of the owners of the water right.536 Permissive use ordinarily negates "any idea or possibility" of adverse use;537 it is a mere 531 See San Diego v. Cuyamaca Water Co., 209 Cal. 105, 134, 287 Pac. 475 (1930). S32Otiver\. Robnett, 190 Cal. 51, 55, 210 Pac. 408 (1922). With respect to the effect of the California constitutional amendment of 1928, notably on the competing rights of riparians and appropriators, see the later discussion under "Statute of Limitations-Statute set in motion." 533See Pyramid Land & Stock Co. v. Scott, 51 cal. App. 634, 637-638, 197 Pac. 398 (1921). This matter is discussed later under "Establishment of Prescriptive Title-Relative Locations on Stream Channel." "*Heinkel v. McAllister, 113 Cal. App. (2d) 500, 502, 248 Pac. (2d) 438 (1952); accord, Schluter v. Burlington Ditch, Res. & Land Co., 117 Colo. 284, 290, 188 Pac. (2d) 253 (1947); Linford v. Hall & Son, 78 Idaho 49, 54, 297 Pac. (2d) 893 (1956); Colarchik v. Watkins, 144 Mont. 17, 393 Pac. (2d) 786, 789-790 (1964); Franktown Creek In. Co. v. Marlette Lake Co., 77 Nev. 348, 364 Pac. (2d) 1069,1071-1072 (1961); Martinez v. Mundy, 61 N. Mex. 87, 95, 295 Pac. (2d) 209 (1956); Smyth v. Jenkins, 148 Oreg. 165, 169, 33 Pac. (2d) 1007 (1934); Francis v. Roberts, 73 Utah 98, 101, 272 Pac. 633 (1928); Weidensteiner v. Matty, 55 Wash. 79, 81, 104 Pac. 143 (1909); Gustin v. Harting, 20 Wyo. 1,19,121 Pac. 522 (1912). mHeinkel v. McAllister, 113 Cal. App. (2d) 500, 504, 248 Pac. (2d) 438 (1952). 536Hall v. Blackman, 8 Idaho 272, 282, 68 Pac. 19 (1902); accord, Smith v. Hallwoodlrr. Co., 67 Cal. App. 777, 782-783, 228 Pac. 373 (1924). "Prescriptive rights are established only when the enjoyment thereof is adverse, continuous and under the claim of legal right, and not by consent, permission or mere indulgence of the owner of the alleged servient estate." Peck v. Howard, 73 Cal. App. (2d) 308, 328, 167 Pac. (2d) 753 (1946). s"IHon v. Hyde, 107 Mont. 84, 92, 81 Pac. (2d) 353 (1938). |
