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Show PRESCRIPTION 405 Negations.-(I) Alaska. The Alaska Water Use Act provides that "No right to the use of water either appropriated or unappropriated shall be acquired by adverse use or possession."777 (2) Kansas. The water appropriation act, as amended in 1957, provides that: "No person shall have the power or authority to acquire an appropriation right to the use of water for other than domestic use without first obtaining the approval of the chief engineer, and no water rights of any kind may be acquired hereafter solely by adverse use [or] adverse possession * * * ."778 (3) Nevada. In 1949 the supreme court considered it settled that a right to use water might be acquired by adverse use prior to enactment of the Nevada water law. The court was not prepared to overrule a previous holding to that effect, nor to read into the water statute something that it did not find stated there even by implication.779 The foregoing decision was made reluctantly, by a vote of two to one; and the majority opinion stated that "adverse use is wholly unwarranted, unnecessary and clearly dangerous to the appropriation and distribution of public property."780 The legislature was then in session, so the court specifically called the problem to its attention. Accordingly, the legislature at that 1949 session so amended the water rights statute to include a proviso, which now reads as follows:781 No prescriptive right to the use of such water or any of the public water appropriated or unappropriated can be acquired by adverse user or adverse possession for any period of time against a person registered as first owner with a possessory title only. Haw. Rev. Stat. § 501-87 (1968). 777 Alaska Stat. § 46.15.040(a) (Supp. 1966). 778Kans. Stat. Ann. § 82a-705 (1969). In a 1936 case, prior to this enactment, the Kansas Supreme Court said inter alia that "no prescriptive rights to water for irrigation purposes can be acquired by one riparian landowner to the detriment of other riparian landowners. Clark v. Allaman [71 Kans. 206, 80 Pac. 571 (1905)] Syl. 10, 11, and 14." Frizellv. Bindley, 144 Kans. 84, 93, 58 Pac. (2d) 95 (1936). However, this appears to have been mere dictum and to have been an erroneous interpretation of the earlier Clark case which the court cited as support. Syllabus 14 of the Clark case, which it relied upon, states: "A lower riparian owner acquires no prescriptive right against upper proprietors to receive a given quantity of the flow of a stream by diverting and using it after it has left their land; and an upper proprietor can acquire no prescriptive right to divert water, as against owners down the stream, so long as the flow is sufficient for the needs of all." [Emphasis added.] See the use of the Clark case in the discussion at note 525 and in note 716 supra. This dictum from the Frizell case, supra, was subsequently repeated, again as dictum, in Heise v. Schultz, 167 Kans. 34, 204 Pac. (2d) 706, 712 (1949). 779 Application of Filippini, 66 Nev. 17, 26-27, 202 Pac. (2d) 535 (1949), citing Authors v. Bryant, 22 Nev. 242, 38 Pac. 439 (1894). 780 66 Nev. at 28-29. 781 Nev. Rev. Stat. § 533.060(3) (Supp. 1967). |
