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Show 390 LOSS OF WATER RIGHTS IN WATERCOURSES Owners of rights affected.-(1) A prescriptive right to the use of water out of a common supply to which a number of different rights attach may be acquired as against only one or some of the parties,684 leaving the rights of others unaffected. This indeed is the usual situation that prevails on stream systems; the prescriptive right runs against only those who are injured by the unauthorized diversion. (2) In 1899, the Supreme Court of Hawaii had occasion to declare that an adverse right does not run against another tract in the same ownership; that until the lands have separate owners, no adverse use of the water can be made in favor of one tract as against the other.68s (3) It is an elementary principle, said the Washington Supreme Court, that: "Ordinarily, a tenant cannot adversely hold the real property of his landlord for the purpose of acquiring title by prescription." In this case, the owner of a lower tract rented an adjoining upper tract on which there was located a spring, the water of which was used by the lower owner on his own land. Under these circumstances, it was held that an easement in the flow of the spring had not been acquired by the latter.686 (4) The exclusive occupancy of a cotenant is deemed permissive and does not become adverse until the tenant out of possession has had notice, either actual or constructive, that the possession of the cotenant is hostile to him. When entry into occupancy is avowedly as a tenant in common with others, the possession thus gained is the possession of the others and continues as such until the tenancy in common is disclaimed.687 Corporation.-(I) Early in the 20th century, in rejecting a contention that a corporation had no power under the law to acquire title by prescription, but was limited strictly in its mode of acquisition to purchase and to condemna- tion, the California Supreme Court stated, "In this state a corporation's title to water either by appropriation or prescription has been recognized and upheld from the very earliest day."688 6MLonoaea v. Wailuku Sugar Co., 9 Haw. 651, 662 (1895). Moreover, a prescriptive water right often may be applicable to only a part of another's water right. See "Measure of the Prescriptive Right-Part of Invaded Right Only," infra. 685 Kohala Sugar Co. v. Wight, 11 Haw. 644, 648 (1899). 686Rogers v. Cation, 9 Wash. (2d) 369, 374-375, 115 Pac. (2d) 702 (1941); accord, Heeia Agric. Co. v. Henry, 8 Haw. 447, 448 (1892); Gill v. Malan, 29 Utah 431, 438, 82 Pac. 471 (1905). 6&1Kraemer v. Kraemer, 167 Cal. App. (2d) 291, 334 Pac. (2d) 675, 685 (1959); Smith v. North Canyon Water Co., 16 Utah 194, 200, 52 Pac. 283 (1898); Beers v. Sharp, 44 Oreg. 386, 394, 75 Pac. 717 (1904); Church v. State, 65 Wash. 50, 55, 117 Pac. 711 (1911). 6B*Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 594, 77 Pac 1113 (1904). "The same presumptions [with respect to prescription] apply to corporations as to private persons." Gurnsey v. Antelope Creek & Red Bluff Water Co., 6 Cal. App. 387, 392, 92 Pac. 326 (1907). |
