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Show PRESCRIPTION 391 (2) A public service corporation-private corporation serving the public- may acquire title by prescription against riparian owners in California, just as an individual may do with respect to the irrigation of his own land.689 And on the other hand, a public service corporation is no more exempt from prescription on the part of an upstream taker of water than is any other owner of a water right.690 Public Entities or agencies.-(\) The California Civil Code provides that no possession by any person, firm, or corporation, however long continued, of any "land, water, water right, easement, or other property whatsoever dedicated to a public use by a public utility, or dedicated to or owned by the state or any public entity, shall ever ripen into any title, interest or right against the owner thereof."691 (2) It "may be stated as a general rule that no invasion of the rights of property which are held by a public or municipal corporation in perpetual trust for public uses can be held sufficient to furnish the basis of a defense based solely upon prescription."692 (3) The Texas statute of limitations contains a provision forbidding acquisition by any person of any right by adverse possession to any part of any road, street, alley, sidewalk, or grounds belonging to any town, city, or county or dedicated for public use therein.693 (4) The Wyoming Supreme Court stated in 1914 that in that State there was no express statutory provision as to acquisition of title to municipal property, held in trust for the inhabitants, by adverse use as against the municipality; "in such case the right is denied by the great weight of authority." This principle was held applicable to the instant case, on the ground that the City of Cheyenne, in acquiring and holding the right to the use of water for the benefit of the whole public, "acts as the agent of the State in exercising * * * governmental functions as distinguished from private capacity and powers."694 (5) On the other hand, in 1931, the Oregon Supreme Court held that the statute of limitations runs against a city in its proprietary or business capacity, and that the city can lose its water rights by prescription. "The power to provide a water system is not governmental or legislative in character, but strictly proprietary, and the city engaged in the prosecution of such an 689 California Pastoral & Agric. Co. v. Madera Canal & In. Co., 167 Cal. 78, 88,138 Pac. 718(1914). 690San Joaquin & Kings River Canal & In. Co. v. Worswick, 187 Cal. 674, 694, 203 Pac. 999 (1922). 691 Cal. Civ. Code § 1007 (West Supp. 1970). See also Colo. Rev. Stat. Ann. § 118-7-1(2) (Supp. 1967). 692 San Diego v. Cuyamaca Water Co., 209 Cal. 105, 135, 287 Pac. 475 (1930). 693Tex. Rev. Civ. Stat. Ann. art. 5517 (1958). 694Holt v. Cheyenne, 22 Wyo. 212, 232-234, 137 Pac. 876 (1914). |
