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Show PRESCRIPTION 383 The statutes of five of these States (Alaska, Kansas, Nevada, Utah, and Washington) are discussed later under "Establishment of Prescriptive Title- Possibility of Establishing Prescriptive Water Right Negated or Questioned- Negations." In four additional States (New Mexico, Oregon, Texas, and Wyoming) the possibility of establishing a prescriptive right as against one or more kinds of water rights has been questioned in one or more reported court decisions. This is noted later under the aforementioned topic in the subtopic "Questionings." Statute set in motion.-(I) In general, (a) The statute of limitations is set in motion at the time when the person suffering the damage first has a cause of action arising from the adverse use.650 To constitute adverse use, there must be an actual invasion of another's right. In the case of land, unlawfully taking possession of it is such an invasion because the owner holds actual title to the land. But riparian proprietors or appropriators do not hold title to the running water; their property in the water comprises their right to use the water. To invade this right it ordinarily is necessary to interfere with their use of the water. (b) "When there is sufficient water in the river to supply all parties, there can be no such thing as adverse use of the water to start the statute of limitations running. Each is entitled to the use of the water, and it is only when the water becomes so scarce that all of the parties cannot be supplied, and that one appropriator takes water which by priority belongs to another appropri- ator, that there is an adverse use."6sl This early statement by the Arizona Supreme Court represents the consensus of most authorities.652 (c) Most authorities agree that there must be an actual deprivation of the rightful owner's use of the water. Modifying factors which have appeared in some court decisions in California and Texas are stated at the close of this subtopic.653 Thus, it was said by the courts in New Mexico and Washington that limitation did not begin to run from the date water was first used by defendants, but from the date their use deprived plaintiffs of their appropri- ated water.654 Furthermore, the owners of the water right must be drprived of 650St. Martin v. Skamania Boom Co., 79 Wash. 393, 398-399, 140 Pac. 355 (1914). The general rules of law which provide the basis for causes of action with respect to appropriative, riparian and other water rights to use watercourses under various circumstances have been discussed in previous chapters. 6S1Egan v. Estrada, 6 Ariz. 248, 253, 56 Pac. 721 (1899). 652See, e.g., Masterson v. Kennard, 140 Oreg. 288, 296, 12 Pac. (2d) 560 (1932). The Montana Supreme Court has indicated that if the rightful owner is not deprived of any water to which he is entitled at any time he actually requires use of the water, he has no such ground for complaint as to start the statute of limitations running. Galliger v. McNulty, 80 Mont. 339, 358-359, 260 Pac. 401 (1927). 653 See also modifying factors discussed under "Establishment of Prescriptive Title- Relative Locations on Stream Channel-Downstream prescriptive claimant: Actual interference with upstream property or water right," infra. 6s*Bounds v. Corner, 53 N. Mex. 234, 245, 205 Pac. <2d) 216 (1949); Madison v. McNeal, 171 Wash. 669, 676-678,19 Pac. (2d) 97 (1933). |