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Show 400 LOSS OF WATER RIGHTS IN WATERCOURSES the power of acquiring prescriptive rights to the use of the waters of a stream by the mere user thereof for any period after they have passed the lands of the upper proprietor, have no application to the facts of the case at bar. (d) Misunderstanding of California decision. The opinion in a Federal case stated that, admittedly, the proposition "that a lower riparian owner cannot, ordinarily, acquire any adverse rights to the same stream against an upper owner * * * is a correct general statement of the law of California, although there have been deviations in the cases." A footnote lists several cases that support the general principle and adds: "For a deviation from principle, see, Larsen v. Appollonio, 1936, 5 Cal. 2d 440, 55 P. 2d 196." No other cases are cited as deviations.734 It is true that in Larsen v. Appollonio the California Supreme Court held that plaintiffs had acquired a prescriptive water right against the proprietor of upstream land.735 The reported opinion discloses no facts that would take the case out of the rule, theretofore held to be the settled law in California, that prescription does not run against upstream water rights; yet the only authority cited on this phase was Smith v. Gaylord, in which, as noted above, the general rule was not applied because of actual trespass.736 However, the true factual situation in Larsen v. Appollonio, and the reason for holding that the diversion was a trespass, appear in the court record. The findings of fact of the trial court, as set forth in the clerk's transcript on appeal, show that although it was true that defendants' lands were then located upstream from plaintiffs' point of diversion, it was "also true that for more than five years after the original diversion and taking of water by the plaintiffs herein and their predecessors, and at the time of said diversion, and for a long time prior thereto, the land upon which the said diversion was made and the lands now owned by the defendant were a part and parcel of a single tract of land, the ownership of which was vested in and located in one person, as the owner in fee simple thereof."737 With this explanation, Larsen v. Apollonio is not a deviation from the established California rule, but is in accord with those cases in which the rule was not invoked for the sole reason that there was an actual trespass. Some Circumstances Negating Establishment of Prescription It is not unusual to find an assertion of prescription lacking in many of the essential requirements.738 Although actual use of water is one of the requisites, 734United States v. Fallbrook Pub. Util. Dist., 108 Fed. Supp. 72, 84 (S.D. Cal. 1952). 73iLarsen v. Apollonio, 5 Cal. (2d) 440, 443, 55 Pac. (2d) 196 (1936). ™Smith v. Gaylord, 179 Cal. 106, 108-109, 175 Pac. 449 (1918). 737Clerk's transcript on appeal, on file with the Clerk of the Supreme Court, Sac. No. 4911, beginning at page 33, finding 111, page 35. 738For example, a trial court found: "That neither the defendant nor his grantors or predecessors in interest, or any of them, have been in the exclusive, open, notorious, |
