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Show 402 LOSS OF WATER RIGHTS IN WATERCOURSES to show any use or appropriation of the waters of the springs by plaintiffs or their predecessors in interest to the exclusion of others having stock running at large upon the public domain in their vicinity."754 No claim of right-No unqualified claim of right.7S5 Interruption of running of statute. -Interruption by filing of suit by rightful owner.756 Acquiescence in demands of rightful owner.757 No continuous period; actual, physical interruption occurred nearly every year.758 Other. -(1) Lack of satisfactory evidence.759 (2) Water right claimed to have been invaded by adverse possession found to have been abandoned; hence water had reverted to the State and again become subject to appropriation.760 (3) Those claiming to be the legal owners of the adversed right were not made parties.761 (4) Use of riverbed as a convenience and privilege, by reason of ownership of riparian land, held not hostile to claim of town of title to riverbed, and could not support riparian owner's claim of title thereto by limitation.762 Prescription not favored "Prescriptive rights are not favored by the law."763 "A prescriptive easement is not looked upon with favor by the law and it is essential that all one-half the flow of a spring not exclusive, Watkins Land Co. v. Clements, 98 Tex. 578, 584-585, 86 S.W. 733 (1905); no claim of exclusive right to pump all the water out of a lake, Lakeside Irr. Co. v. Kirby, 166 S.W. 715, 717 (Tex. Civ. App. 1914, error refused). For several years no one had the exclusive use of the water in controversy, sometimes one using it and then another, but possession of none of the claimants was continuous; hence no adverse possession. Faull v. Cooke, 19 Oreg. 455, 467, 26 Pac. 662 (1890). 754Jones v.Hanson, 133 Mont. 115, 123-124, 320 Pac. (2d) 1007 (1958). "5sSt. Martin v. Skamania Boom Co., 79 Wash. 393, 398-399, 401, 140 Pac. 355 (1914); no adverse or hostile assertion of rights as a matter of fact, Raymond v. Willapa Power Co., 102 Wash. 278, 282-283, 172 Pac. 1176 (1918); "The mere fact of trespass does not give a right of user unless such is claimed adversely to the owner," Cook v. Maremont-Holland Co., 75 Nev. 380, 344 Pac. (2d) 198, 202 (1959). ls6Alta Land & Water Co. v. Hancock, 85 Cal. 219, 227-228, 24 Pac. 645 {1%9Q); Baker v. Brown, 55 Tex. 377, 381-382 (l88l);Biggs v. Leffingwell, 62 Tex. Civ. App. 665, 668, 132 S.W. 902(1910). 757 Wasatch Irr. Co. v. Fulton, 23 Utah 466, 468, 65 Pac. 205 (1901). 7S8/« reAhtanum Creek, 139 Wash. 84, 92-93, 245 Pac. 758 (1926). 7SS> "It is not reasonable to suppose that priority of right to water, where water is scarce, or likely to become so, will by lightly sacrificed or surrendered by its owner," Loshbaugh v. Benzel, 133 Colo. 49, 61-62, 291 Pac. (2d) 1064 (1956); no satisfactory proof as to when ditches were built; no evidence of diversion or use by adverse claimant or predecessors, Vennesv.Nollmeyer, 144 Mont. 43, 394 Pac. (2d) 178, 182 (1964). 760Chill v. Jarvis, 50 Idaho 531, 536-537, 298 Pac. 373 (1931). 761 Forrester v. Rock Island Oil & Refining Co., 133 Mont. 333, 342, 323 Pac. (2d) 597 (1958). 762Heard v. Texas, 146 Tex. 139, 148-149, 204 S.W. (2d) 344 (1947). l63D.dwnie v. Renton, 167 Wash. 374, 377, 9 Pac. (2d) 372 (1932). |
