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Show PRESCRIPTION 395 prescriptive rights are claimed and acquired by reason of upstream diversions of water as against downstream lands and holders of water rights that are injured because water that should have been allowed to flow downstream has been thereby prevented from doing so.711 It is often said, "prescription does not run upstream." This follows from the fundamental concept that "To perfect a claim based upon prescription there must, of course, be conduct which constitutes an actual invasion of the former owner's rights so as to entitle him to bring an action."712 As noted below, the landowner generally has no right to complain of the use of water after it has left his premises with his acquiescence; hence in such case the grant of an easement would not be presumed.713 Whether the upstream claimant is an appropriator or a riparian proprietor, and whether the downstream claim is appropriative or riparian, should make no difference.714 In 1931, a Federal court said: Under the decisions of the state of California a lower riparian owner, or appropriator, gains no title to the water by prescription or use as against an upper riparian owner or appropriator, for the reason that the use of the water after it leaves the lands of the riparian owner is in no sense an interference with the rights of an upper riparian owner which are fully satisfied at the time the water reaches his lower boundary line.715 711 Crawford Co. v. Hathaway, 67 Nebr. 325, 374-375, 93 N.W. 781 (1903); Martin v. Burr, 111 Tex. 57, 65-66, 228 S.W. 543 (1921); Spring Creek Irr. Co. v. Zollinger, 58 Wash. 90, 97, 197 Pac. 737 (1921); Farwell v. Brisson, 66 Wash. 305, 308, 119 Pac. 814 (1911); Ay v.Hill, 241 Ore. 507, 406 Pac. (2d) 148, 149 (1965). "'Pasadena v. AUtambra, 33 Cal. (2d) 908, 927, 207 Pac. (2d) 17 (1949); accord, Lakeside Ditch Co. v. Crane, 80 Cal. 181, 183, 22 Pac. 76 (1889); Wellsville East Field Irr. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 482, 137 Pac. (2d) 634 (1943). 713Hanson v.McCue, 42 Cal. 303, 310 (1871). 714See, e.g., United States v. Central Stockholders' Corp. of Vallejo, 52 Fed. (2d) 322, 339 (9th Cir. 1931); Cory v. Smith, 206 Cal. 508, 511, 274 Pac. 969 (1929). See also Lakeside Ditch Co. v. Crane, 80 Cal. 181, 183, 22 Pac. 276 (1899); Fort Quitman Land Co. v. Mier, 211 S. W. (2d) 340, 344 (Tex. Civ. App. 1948, error refused n.r.e.); Santa Rosa Irr. Co. v. Pecos River Irr. Co., 92 S.W. 1014, 1016-1017 (Tex. Civ. App. 1906, error refused); Pecos County W. C. & I. Dist. No. 1 v. Williams, 271 S.W. (2d) 503, 506 (Tex. Civ. App. 1954, error refused n.r.e). But see Allen v. Roseberg, 70 Wash. 422, 426-427, 126 Pac. 900 (1912), in which there was a contention that there can be no adverse use by a lower proprietor as against those above, inasmuch as the use below does not interfere with, and hence is no invasion of, the rights of the upper owner. The supreme court answered: "It is no doubt true that a lower use is, as a general rule, in its very nature not adverse. But this rule is applicable in its full sense only as between upper and lower riparian proprietors, and only where the lower use does not interfere with the upper."[Emphasis added.] 715 United States v. Central Stockholders' Corp. of Vallefo, 52 Fed. (2d) 322, 339 (9th Cir. 1931). In Cory v. Smith, 206 Cal. 508, 511, 274 Pac. 969 (1929), the California Supreme Court said, "[A] s lower riparian owners or as appropriators upon privately owned land, |
