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Show PRESCRIPTION 397 The Idaho Supreme Court added another facet to the effect that under the law, it is the duty of a prior appropriator to allow the water, which he has the right to use, to flow down the channel for the benefit of junior appropriators at times when he has no immediate need for its use. "To allow a junior, or other, appropriator to establish an adverse right to such water during times when it is not required, and not being used, by the original appropriator, on the theory that such adverse use was inconsistent with the right of the prior appropriator, would subvert the purpose of the law and encourage wasteful diversion and use of water in violation thereof."720 From all this it follows that mere nonuse on the part of the upper proprietor cannot make the lower use of the water adverse; hence acquiescence on the part of the upper owner to the flow of the water away from his premises does not support a prescriptive right on the part of the lower owner.721 The downstream owner, say the courts, should not be permitted to acquire a right in this manner which the upper owner is powerless to prevent.722 And so it results that the lower owner or appropriator ordinarily gains nothing against the upper owner or proprietor by the mere use of water on his downstream land, no matter how long such use may have continued.723 The rule that a lower use does not impair an upper right was applied in California as between an owner of land riparian to a stream and an owner of land overlying percolating water tributary to the stream above the riparian land.724 In an early California case the rule also was applied to the use of water of a spring after the water had flowed away in an artificial channel from the land on which the spring was situated.725 Downstream prescriptive claimant: Actual interference with upstream property or water right.-(I) Applicability of the foregoing rule. The applicability of the foregoing rule-that a use of water diverted or used at a point below the land of a riparian owner or diversion of an appropriator ordinarily gives no right by adverse possession against the holder of the upstream right-is predicated on the condition that there be no interference with the use of the stream at the upstream riparian land or appropriative ""Moutain Homelrr. Dist. v. Duffy, 79 Idaho 435, 442-443, 319 Pac. (2d) 965 (1957). ^Rogers v. Overacker, 4 Cal. App. 333, 339, 87 Pac. 1107 (1906);Hargrove v. Cook, 108 Cal. 72, 78-79, 41 Pac. 18 (1895). li2Bathgate v. Irvine, 126 Cal. 135, 141, 58 Pac. 442 (1899);Pyramid Land & Stock Co. v. Scott, 51 Cal. App. 634, 637-638, 197 Pac. 398 (1921). 123Peake v. Harris, 48 Cal. App. 363, 382, 192 Pac. 310 (1920); Cory v. Smith, 206 Cal. 508, 511, 274 Pac. 969 (1929). ''"Hudson v. Dailey, 156 Cal. 617, 627, 105 Pac. 748 (1909). The riparian's use of the water, after it had passed through the overlying tributary lands and become a part of the surface stream, "would not injure them [the overlying owners], nor constitute a trespass upon their property, and, hence, it would not be adverse to them and could not be the foundation of a title by prescription as against them." 735Hanson v. McCue, 42 Cal. 303, 310 (1871). |