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Show PRESCRIPTION 369 discharge refuse water from a reservoir onto and across lands of another, the Washington Supreme Court made this differentiation:563 A different rule applies where the user, as here, consists of occasional acts of trespass, and cases where water is appropriated during long periods of time and the amount appropriated varies according to the seasons. In the latter class of cases, the law seems to be that, if the claimant makes use of the water from time to time as his needs require, there is a continuity of use. A stricter rule applies where the prescriptive right is based upon occasional torts spread over the statutory period. In the latter class of cases, the rule is quite general that isolated cases of trespass, though repeated over a long period of time, do not constitute use so as to support a claim of prescriptive right. Uninterrupted use.-(I) To enable adverse claimants to maintain a prescrip- tive right to water flowing in a stream as against another claimant, there must have been, among other things, "an uninterrupted enjoyment by them, under claim of right," for the prescriptive period.564 (2) In one of the earliest California cases decided with respect to prescriptive rights to the use of water, the supreme court observed that if an adverse use and enjoyment of water have been interrupted, no presumption of a grant can arise.565 (3) In a 1957 Washington case, occasionally a surplus of water was not used by plaintiff but flowed to the river, from which defendant argued that plaintiffs use was not exclusive. Rejecting this contention, the supreme court quoted the following statement from Wiel: " 'The terms "exclusive" and "uninterrupted" probably represent the same thing in this connection; namely, that to the extent of the right claimed, the claimant must not have shared the use with the true owner, nor suffered any act of dominion by him, such as an interruption.' "566 (4) There are numerous examples of long continued uninterrupted use in the reported cases.567 However, in each instance that has come to the attention 5e3D6wnie v. Renton, 167 Wash. 374, 382-383, 9 Pac. (2d) 372 (1932). 564 Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 91-92 (C.C.D. Nev. 1897); Morris v. Bean, 146 Fed. 423, 433 (C.C.D. Mont. 1906); Webster v. Lomas, 112 Colo. 74, 75, 145 Pac. (2d) 978 (1944); Franktown Creek In. Co. v. Marlette Lake Co., 11 Nev. 348, 364 Pac. (2d) 1069,1071 (1961); Baker v. Brown, 55 Tex. 377, 381 (1881);Ma/«ar/v. Ramstead, 50 Wash. (2d) 105, 108, 309 Pac. (2d) 754 (1957). '"American Co. v. Bradford, 27 Cal. 360, 368 (1865). M6Malnati v. Ramstead, 50 Wash. (2d) 105, 108, 309 Pac. (2d) 754 (1957), quoting from Wiel, S.C., "Water Rights in the Western States," 3d ed., vol. 1, § 584 (1911). Washington legislation enacted in 1967 provides that "No rights to the use of surface or ground waters of the state affecting either appropriated or unappropriated waters thereof may be acquired by prescription or adverse use." Wash. Rev. Code § 90.14.220 (Supp. 1970). M7For example, more than 30 years except for one 41-day interference in 1940, Gross v. MacComack, 75 Ariz. 243, 248, 255 Pac. (2d) 183 (1953); more than 26 years, |
