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Show 398 LOSS OF WATER RIGHTS IN WATERCOURSES diversion, and no trespass upon the upstream property.726 Thus the rule applies generally; that is, it governs unless the upstream use has been actually interfered with by the adverse use below, "a thing which can seldom occur."727 However, such things have occurred. In the water rights prescription cases that have reached the courts of the West, there have been instances of actual trespass by the lower claimant, and of actual interferences with the exercise of the upstream right. The general rule thus lacked its foundation in these cases and hence was not applied. (2) Some examples of nonapplicability of the general rule, (a) Texas. In a case involving backflow from a dam, the Texas Supreme Court cited authority to the effect that a riparian owner cannot throw the water back upon the proprietors above, without a prescriptive right.728 (b) Washington. For a period of nearly 25 years, a landowner and her predecessors used water on their land obtained from springs on upper land of another, which they conveyed through ditches that they constructed onto the upper land of origin. To this they were held to have acquired a prescriptive right.729 The same principle was invoked in a case in which a lower landowner built an irrigation ditch to his land from a watercourse on upper land which was fed primarily from a spring located on such upper land, having previously filed a claim to the spring waters. It was held that the lower owner acquired a prescriptive right because he built his diversion works, not for the purpose of taking whatever waters came down the stream, but to acquire the waters of the spring. The upper landowner had a right of action because of the invasion of his property by the ditch and diversion works and could have prevented their use.730 726 Title by prescription cannot be acquired against a tract of riparian land by diverting the water from the stream at a point below such land, and not interfering with the stream at the riparian land. Miller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 423, 147 Pac. 567 (1915). Rule applicable only where the lower use does not interfere with the upper. Allen v. Roseberg, 70 Wash. 422, 426-427, 126 Pac. 900 (1912). SeeMally v. Weidensteiner, 88 Wash. 398, 405, 411, 153 Pac. 342 (1915). "Terry v. Calkins, 159 Cal. 175, 177-178, 113 Pac. 136 (1911). 1MHaas v. Choussard, 17 Tex. 588 (1856). The court observed that "Whether an action for throwing back water will lie for merely nominal damages, where there has been no actual injury, is not free from doubt, though supported by American authorities." Id. at 590. 129Mason v. Yearwood, 58 Wash. 276, 277-278, 280-281, 108 Pac. 608 (1910). "While there is no direct statute governing the matter, the courts generally hold that an easement is acquired in the lands of another by an adverse user for the period of the statute of limitations * * *." ^Donatanello v. Gust, 86 Wash. 268, 271-272, 150 Pac. 420 (1915). In a different instance, the lower owner went upon the upper lands to clear obstructions from the stream, but he did not interfere with the upper appropriator's diversion and use. The supreme court recognzied that a prescriptive right can be obtained against an upper owner by a lower claimant, citing its own decisions, but |
