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Show 422 LOSS OF WATER RIGHTS IN WATERCOURSES have subordinate rights in the waters of the stream, "the right to change the place of use can only be exercised when, and to the extent that, such change will not injure the subordinate right."868 Such change will result in injury, for example, where the quantity of water used by the prescriptive holder is increased at the expense of others;869 or where others are deprived of the benefit of the return flow from land irrigated under the prescriptive right.870 (4) Purpose of use. Changes in the purpose of use under prescriptive rights are governed by the same principles. The California Supreme Court said: "The right being a prescriptive one, it is a usufructuary right, not a part or parcel of any particular land. As long as the beneficial use is continued, the owners of the prescriptive right may change their place or character of use, provided vested rights are not injured thereby."871 Measure of the Prescriptive Right The Use Which Conferred the Title Many western decisions are authority for the proposition that rights by prescription are limited by the extent of the use which conferred the title. The right cannot be enlarged to place a greater burden or servitude on the property. Such rights are stricti juris, and should not be extended beyond the actual user.872 In 1902, the Oregon Supreme Court summed up this principle in a statement that is as valid now in jurisdictions in which prescriptive water rights are recognized as it then was:873 It is axiomatic that the right acquired by prescription is exactly commensurate with the right enjoyed; that is, the extent of the s68Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 71-72, 77 Pac. 767 (1904). 869Southside Improvement Co. v. Burson, 147 Cal. 401, 410-411, 81 Pac. 1107 (1905). 870Scott v. Fruit Growers'Supply Co., 202 Cal. 47, 52-53, 258 Pac. 1095 (1927). t7iAlbaugh v. Mt. Shasta Power Corp., 9 Cal. (2d) 751, 765-766, 73 Pac. (2d) 217 (1937). ™Mbore v. California Oregon Power Co., 22 Cal. (2d) 725, 735-736, 740, 140 Pac. (2d) 798 (1943); Loosli v. Heseman, 66 Idaho 469, 481, 162 Pac. (2d) 393 (1945); Wallace v. Winfield, 96 Kans. 35, 38, 149 Pac. 693 (1915); Chessman v. Hale, 31 Mont. 577, 584, 79 Pac. 254 (1905); Paloucek v. Adams, 153 Nebr. 744, 746, 45 N.W. (2d) 895 (1951); Boynton v. Longley, 19 Nev. 69, 76, 6 Pac. 437 (1885);Hall v. Carter, 33 Tex. Civ. App. 230, 234, 77 S.W. 19 (1903, error refused); Nielson v. Sandberg, 105 Utah 93, 103-104, 141 Pac. (2d) 696 (1943); Dontanello v. Gust, 86 Wash. 268, 270-271, 150 Pac. 420 (1915); Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 91 (C.C.D. Nev. 1897); Garden City Co. v. Bentrup, 228 Fed. (2d) 334, 340-341 (10th Cir. 1955). In a case involving a spring, if it were true that the flow of the spring had gradually increased from year to year, the claimant would not be entitled to any increase that accrued after the inception of the adverse right. Hall v. -Taylor, 57 Idaho 662, 669, 67 Pac. (2d) 901 (1937). 873Salem Mills Co. v. Lord, 42 Oreg. 82, 103, 69 Pac. 1033, 70 Pac. 832 (1902). |