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Show PRESCRIPTION 413 Code procedure in acquiring a prescriptive water right in California is stated in a publication prepared by the State Water Resources Control Board for the use of intending appropriators, as follows:816 Since enactment of the Water Commission Act (effective December 19, 1914), it has not been possible to secure a right to appropriate or use water (other than as a riparian or overlying owner, or appropriator of percolating ground water), without first obtaining a permit from the State (see Water Code Section 1225 and Crane v. Stevinson, 5 Cal. 2d 387, 54 P. 2d 1100). It would appear to follow that although one who now uses water without a permit for a sufficient period of time may, under certain circumstances, foreclose objection by those who have been adversely affected, he does not thereby acquire a right to prevent diversions by others which deplete the supply of water available to him. Although California courts have not been called upon to determine this precise question, in view of the uncertainty in this respect and because in any event a prescriptive right can be finally determined only by a court of competent jurisdiction, it is the policy of the board to disregard a claim to water subject to the permit procedure which is based only upon use initiated subse- quent to 1914 unless it is supported by a permit. The relation of prescription to statutory adjudication is considered later under "Character and Quality of Prescriptive Title-Relation to Statutory Adjudication." Character and Quality of Prescriptive Title Charac teristies Usufructuary.-The prescriptive right is a usufructuary right, not a part or parcel of any particular land.817 Exclusive.- As noted earlier, under "Elements of the Prescriptive Right," there must be in the establishment of a prescriptive right, among other things, a claim of exclusive right. Also, as noted earlier under "Establishment of Pre- scriptive Title-Prescription not Favored-Burden of proof: Adverse use," the quantity of water to which the right attaches is a specific quantity that must be found by the court to be reasonably necessary for the requirements of the land for which the right was acquired. The right to this quantity of water is exclusive with respect to those against whom it has vested.818 816 California State Water Resources Control Board, "Regulations and Information Pertaining to Appropriation of Water in California," Cal. Admin. Code, tit. 23, p. 50 (1969). ^Albaugh v. Mt. Shasta Power Corp., 9 Cal. (2d) 751, 765, 73 Pac. (2d) 217 (1937); Alpaugh In. Dist. v. County of Kern, 113 Cal. App. (2d) 286, 295, 248 Pac. (2d) 117 (1952). '"£¦ Clemens Horst Co. v. Tan Min. Co., 174 Cal. 430, 436-438, 163 Pac. 492 (1917); Akin v. Spencer, 21 Cal. App. (2d) 325, 332, 69 Pac. (2d) 430 (1937). |
