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Show SPRING WATERS 629 Adverse user is such use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right. Hostile use of real property by an occupant or user does not import ill will, but imports that the claimant is possessing or using it as owner, in contradistinction to possessing or using the real property in recognition of or subordinate to the title of the true owner. * * * ? While it is true that the nature of the property may be a consideration in determining whether a prescriptive right therein has been acquired by open, notorious, continuous, exclusive, hostile, and adverse use, it does not follow, as a matter of law, that a prescriptive right cannot be acquired in vacant, unimproved, unused, wild, and uninhabited land. Other elements being estab- lished, "* * * the use must at least be such as to convey to the absent owner reasonable notice that a claim is made in hostility to his title."357 The supreme court concluded that the evidence was sufficient to sustain a finding that plaintiffs use since 1914 had been both adverse and hostile and that defendant had reasonable notice of plaintiffs claim. (3) Estoppel. The Washington Supreme Court has declared that where a landowner changes the flow of a spring into a new channel and leaves it there for more than 30 years, he is estopped to interfere with it to the injury of a party who acquires lower land and makes improvements relying on the continued flow.358 Easement in spring.-A 1956 case involved the judicial construction of a contract providing that in the event parties should partition property owned in common on which there was a spring, each parcel carved out of the original tract should have a right to use water from the spring. Under this contract each such parcel had an easement in the spring and the right to use water therefrom, which included by necessary implication, said the court, the right to run water pipes to the spring. An additional right was granted by the contract to take water from the existing system and to repair and maintain it. However, the purchaser of part of a tract not served by the existing system thereby obtained the right to bring water from the spring to his land, which right was not governed by the terms of the agreement pertaining to the old system.359 357 50 Wash. (2d) at 108-109, quoting from Watson v. County Comm'rs of Adams County, 38 Wash. 662, 665, 80 Pac. 201, 202 (1905). For some earlier Washington decisions on this matter, see Mason v. Yearwood, 58 Wash. 276, 108 Pac. 608 (1910); Kiser v. Douglas County, 70 Wash. 242, 126 Pac. 622 (1912); Dontanello v. Gust, 86 Wash. 268, 150 Pac. 420 (1915); In re Ahtanum Creek, 139 Wash. 84, 245 Pac. 758 (1926); Dickey v. Maddux, 48 Wash. 411, 93 Pac. 1090 (1908); Church v. State, 65 Wash. 50, 117 Pftc. 711(1911). 3s*Hollett v. Davis, 54 Wash. 326, 103 Pac. 423 (1909). 359 White v. Paque, 49 Wash. (2d) 481, 303 Pac. (2d) 524 (1956). |
