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Show 368 LOSS OF WATER RIGHTS IN WATERCOURSES (2) Many courts have expressed their views as to the meaning of "continuous use" in this context when at issue in litigated cases. It does not mean that the use of the water must be literally constant or incessant-for the pragmatic reason that that is not the way in which irrigation water is generally applied to land. "[T]he use does not have to be of a continuous flow in order to establish a prescriptive right * * *."558 Continuity of possession is not broken by reason of the fact that the ditch used for conveying water is in fact used only during the portion of each season when the water is needed for irrigation purposes.559 "The sufficiency of the continuity must depend largely on the nature of the use."560 And it is required that there be "only a use such as is normally exercised."561 (3) The California Supreme Court summed up the problem by saying:562 A right to the use of water for irrigation of land may be acquired by prescription without showing that the water is actually kept running upon the land all the time. Irrigation, as usually practiced, is required only at intervals during the season. If the claimant takes the water and uses it at the time when it is necessary to do so, and does this under claim of right, without molestation by others interested in the stream or ditch, and with their knowledge, actual or implied, it will be sufficient with respect to the continuity of use, although there may be many days or weeks during which he does not use it at all. (4) In a 1932 case in which the right claimed by prescription was to In. Co., 62 Oreg. 348, 353, 124 Pac. 666, 125 Pac. 270 (1912); Farwell v. Brisson, 66 Wash. 305, 308, 119 Pac. 814 (1911); Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 414-415, 100 Pac. (2d) 124, 102 Pac. (2d) 745 (1940). 559 Warren v. Crafton Water Co., 139 Cal. App. (2d) 314, 324, 293 Pac. (2d) 506 (1956); accord, McGlochlin v. Coffin, 61 Idaho 440, 445-449, 103 Pac. (2d) 703 (1940); Glantz v. Gabel, 66 Mont. 134, 142, 212 Pac. 858 (1923); Te Selle v. Storey, 133 Mont. 1, 6, 319 Pac. (2d) 218 (1957); Hargravesv. Wilson, 382 Pac. (2d) 736, 739-740 (Okla. 1963); Ephraim Willow Creek In. Co. v. Olson, 70 Utah 95, 112, 258 Pac. 216 (1927). "'Strong v. Baldwin, 154 Cal. 150, 162, 97 Pac. 178 (1908). "If plaintiff and his predecessors used the ditch whenever needed, as they did, without regard to the rights of others, the requirements of the rule were met." Glantz v. Gabel, 66 Mont. 134, 142, 212 Pac. 858 (1923); accord, McDougal v. Lame, 39 Oreg. 212, 215, 64 Pac. 864 (1901). Adverse use only at the times when water is needed constitutes a sufficient continuous use of the water, whether this be every day, or once a week, or twice a week, or whenever his need calls for it; omission to use when not needed does not break continuity in establishing a prescriptive right. Martin v. Bun, 111 Tex. 57, 66, 228 S.W. 543 (1921). As water ordinarily is used according to need, a right to use it intermittently according to definite periods or according to need may be established. Wellsville East Field In. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 463,137 Pac. (2d) 634 (1943). s60Brandv. Lienkaemper, 72 Wash. 547, 550, 130 Pac. 1147 (1913). 561 Hargravesv. Wilson, 382 Pac. (2d) 736, 739 (Okla. 1963). 562 Northern Cal. Power Co., Consol. v. Flood, 186 Cal. 301, 306, 199 Pac. 315 (1921). |