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Show 412 LOSS OF WATER RIGHTS IN WATERCOURSES on Irrigation Development in California," prescription undoubtedly facilitated, in marked degree, the growth of irrigation in the early decades of that State's water development. Since adoption of the permit system of appropriating water under tlje Water Commission Act811 (now a part of the California Water Code), the question as to whether a riparian right may be taken by prescription without conforming to the statutory formalities for appropriating the water has been the subject of some disagreement, but not of court decision. The point was argued by counsel in a case decided in 1954, but was not discussed by the court because of its conclusion that no question of prescriptive rights was there involved.812 But, as stated by Gavin M. Craig, who has examined the matter deeply, it "cannot indefinitely escape judicial inquiry."813 Mr. Craig made a comprehensive study of the nature of prescriptive water rights in California and concluded, among other things, that no "right of possession" is acquired by use of water of watercourses without a permit from the State, issued pursuant to the Water Code, because such policy is contrary to the policy and letter of the law; and that consequently no prescriptive title "good against the world" is acquired from such use by reason of the running of the statute of limitation against the cause of action of the former owner.814 A literal interpretation and full application of the statute governing the appropriation of water, he says, would require that as a prerequisite to acquisition of a prescriptive water right, a permit to appropriate water be issued to the adverse user.815 Administrative interpretation of the necessity of complying with the Water 811 Cal. Stats. 1913, ch. 586. *12Chuck v.Alves, 124 Cal. App. (2d) 144, 148, 268 Pac. (2d) 94 (1954). See also the majority opinion of Justice Traynor and the dissenting opinion of Justice Schauer in Hudson v. West, 47 Cal. (2d) 823, 306 Pac. (2d) 807, 808, 820 (1957), regarding the court's determination not to make a decision in this regard in the Hudson case. Justice Traynor said, inter alia, that "The parties have not raised this issue * * * and the judgment quieting title in defendants prejudices no right of the state of California, for neither it nor the Department of Public Works was a party to this action." 306 Pac. (2d) at 808. Justice Schauer, in dissent, contended inter alia that "the determination of the law on this question is material * * * to the issues in this case. Furthermore, this issue of law is important generally to the people of California. * * *" 306 Pac. (2d) at 820. 813 Craig, G.M., "Prescriptive Water Rights in California and the Necessity for a Valid Statutory Appropriation," 42 Cal. Law Rev. 219 (1954). Mr. Craig undertook this analysis because the view had been expressed that the statute should not be given such interpretation and application, and that it does not affect prescriptive rights based upon adverse use without conforming to statutory water appropriation formalities: Kletzing, R.R., "Prescriptive Water Rights in California," 39 Cal. Law Rev. 369 (1951); Trowbridge, D., "Prescriptive Water Rights in California: An Addendum," 39 Cal. Law Rev. 525 (1951). Corwin W. Johnson undertook a somewhat similar analysis pertaining to Texas in "The Challenge to Prescriptive Water Rights," 30 Tex. Law Rev. 669 (1952). 814Craig, supra note 813, at 2<*2. 8is/d at 219. |
