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Show 366 LOSS OF WATER RIGHTS IN WATERCOURSES "must be held under a claim of title, exclusive of any other right, as one's own."547 Some circumstances negating exclusiveness.-(l) In a Colorado case in which title to a lake and waters impounded therein was in controversy, possession was held to be not exclusive. Plaintiffs use of the waters was under "recreational rights, that is fishing, propagation of fish, and boating * * *." Defendant was entitled to one-half of the stored water for irrigation, under certain withdrawal restrictions. "It was * * * a joint possession, and this cannot be used as the basis of adverse possession."548 (2) The New Mexico Supreme Court said in one case: "The claim by the appellants that they have acquired by grant or prescription, the right to cut wood, water livestock, pasturage and the use of roads was not shown to have been exclusive to the appellants but on the contrary was claimed by many others. The claim being in common with and similar to that of the general public in this area, the appellants certainly could not acquire a private easement unto themselves."s49 (3) According to the trial court in a Montana case, the proof failed to show any use or appropriation of spring waters by plaintiffs to the exclusion of others having stock running at large in the area. Their own testimony showed that other owners of livestock had enjoyed the same rights and privileges with respect to the spring waters as had the plaintiffs themselves. "In other words, the ownership and use proven by the plaintiffs were in no sense exclusive or subject to the complete dominion and control of plaintiffs." The supreme court agreed that plaintiffs acquired no rights by prescription.550 (4) However, the requirement that the claim of title be one's own and exclusive of any other right does not mean that all other persons are necessarily excluded from the use of the ditch that conveys the water, so long as the adverse claimant's right is not interfered with. A prescriptive right can be acquired for the use of only part of the capacity of a ditch for the conveyance of water in which the claimant claims an exclusive right.551 MnSan Francisco Banks. Longer, 43 Cal. App. (2d) 263, 269, 110 Pac. (2d) 687 (1941); accord, Lee v. Pacific Gas & Elec. Co., 7 Cal. (2d) 114, 120, 59 Pac (2d) 1005 (1936); Authors v. Bryant, 22 Nev. 242, 247, 38 Pac. 439 (1894); Ebell v. Baker, 137 Oreg. 427, 440, 299 Pac. 313 (1931); Heard v. Texas, 146 Tex. 139, 146, 204 S.W. (2d) 344 (1947). 548Surface Creek Ditch & Res. Co. v. Grand Mesa Resort Co., 114 Colo. 543, 546, 558-559, 168 Pac. (2d) 906 (1946). 549Martinez v. Mundy, 61 N. Mex. 87, 95, 295 Pac. (2d) 209 (1956). 550 Jones v. Hanson, 133 Mont. 115, 123-124, 320 Pac. (2d) 1007 (1958). sslSilva v. Hawn, 10 Cal. App. 544, 551, 102 Pac. 952 (1909); Bashore v. Mooney, 4 Cal. App. 276, 281, 87 Pac. 553 (1906). The case in which this principle was apparently first laid down in California with respect to water rights-S/mY/z v. Hampshire, 4 Cal. App. 8, 10, 87 Pac. 224 (1906)-was relied upon by the California Supreme Court to some extent in an important ground water case, Pasadena v. Alhambra, 33 Cal. (2d) 908, 932, 207 Pac. (2d) 17 (1949). |