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Show PRESCRIPTION 403 the elements of use and enjoyment necessary to give title to real estate concur in order to create an easement by prescription."764 Forthermore, the elements must be "clearly, convincingly, and satisfactorily established."765 Presumption against acquisition of title by adverse use.-"The presumption is against the acquisition of such a right."766 Burden of proof: Adverse use.-"It is elementary that the burden is upon one claiming the acquisition of a right by prescription to prove same * * * by the clearest and most satisfactory proof * * * and to establish all of the elements essential to such title * * * ,"767 This obligation upon the prescriptive claimant must be discharged by a preponderance of the evidence.768 It was observed in an early case that if the claimant leaves this matter doubtful, it is not conclusive in his favor.769 "The law will not allow the property of one person to be taken by another, without any conveyance or consideration, upon slight presumptions or probabili- ties."770 As said by the Nebraska Supreme Court, " 'One claiming ownership of real estate by adverse possession must recover upon the strength of his title and not because of a possible weakness in the title of his adversary.' "771 There must be proof of and a finding as to the specific quantity of water to which the prescriptive right attaches, which quantity is that reasonably necessary for the use to which the water is being put under the adverse claim. 764 Wemmer v. Young, 167 Nebr. 495, 93 N. W. (2d) 837, 850 (1958). 1&sKuhlmann v. Platte Valley Irr. Dist., 166 Nebr. 493, 512-513 (1958). lMIn re Use of Water Within Drainage Area of Green River, 12 Utah (2d) 102, 106, 363 Pac. (2d) 199 (1961). In Spring Creek Irr. Co. v. Zollinger, 58 Utah 90, 97, 197 Pac. 737 (1921), the court conceded it far more probable that a right by adverse use may be acquired by parties on the upper portions of a stream than by parties below, "but in either case the presumption is against acquisition of title in any such manner." n61Hahn v. Curtis, 73 Cal. App. (2d) 382, 389, 166 Pac. (2d) 611 (1946). That this is the consensus of the high courts of the West is shown in the following cases: Leialoha v. Wolter, 21 Haw. 624, 630 (1913); Fairview v. Franklin Maple Creek Pioneer Irr. Co., 59 Idaho 7, 15, 79 Pac. (2d) 731 (1938); Loosli v. Heseman, 66 Idaho 469, 480, 162 Pac. (2d) 393 (1945); Drew v. Burggraf, 141 Mont. 405, 378 Pac. (2d) 232, 234 (1963); Worm v. Crowell, 165 Nebr. 713, 722, 87 N.W. (2d) 384 (1958); Cook v. Maremont-Holland Co., 75 Nev. 380, 344 Pac. (2d) 198, 202 {1959); Master- son v. Kennard, 140 Oreg. 288, 296, 12 Pac. (2d) 560 (1932); Henderson v. Goforth, 34 S. Dak. 441, 448, 148 N.W. 1045 (1914); Scoggins v. Cameron County W. I. Dist. No. 15, 264 S.W. (2d) 169, 172 (Tex. Civ. App. 1954, error refused n.i.e.); Rhodes v. Whitehead, 27 Tex. 304, 312-313 (1863);/« re Drainage Area of Bear River in Rich County, 12 Utah (2d) 1, 6, 361 Pac. (2d) 407 (1961); Downie v. Renton, 167 Wash. 374, 378, 9 Pac. (2d) 372 (1932); Union Mill & Min. Co. v.Dangberg, 81 Fed. 73, 91 (C.C.D. Nev. 1897); Morris v. Bean, 146 Fed. 423, 434 (C.C.D. Mont. 1906); Garden City Co. v.Bentrup, 228 Fed. (2d) 334, 340-341 (10th Cir. 1955). 768Skelley v. Cowell, 37 Cal. App. 215, 217, 173 Pac. 609 (1918). 769American Co. v. Bradford, 27 Cal. 360, 367 (1865). 770Peck v. Howard, 73 Cal. App. (2d) 308, 326, 167 Pac. (2d) 753 (1946). 111 Oliver v. Thomas, 173 Nebr. 36, 112 N.W. (2d) 525, 528 (1961), quoting from Ohm v. Clear Creek Drainage Dist., 153 Nebr. 428, 45 N.W. (2d) 117, 118 (1950). |
