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Show CALIFORNIA 679 element of adverse use was supplied by the existence of the overdraft. We cannot agree with the conclusion of the trial court as to the prescriptive character of all ground water rights in issue or with the argument of respondents in support thereof. It is thoroughly established that the existence of adverse use is fundamental to the acquisition of prescriptive status.75 The concurring opinion of Judge Shinn added, "It is a novel theory, unsupported by authority and in my opinion, insupportable in reason."76 The only authorities which the respondents cited in support of the argument for mutual prescription which were discussed by the court were Burr v. Maclay Rancho Water Company11 and San Bernardino v. Riverside.78 Both of these were summarily dealt with in Judge Shinn's concurring opinion. Judge Shinn rejected these cases as authority for the concept of mutual prescription, but rather found these cases to be authority for a decree ordering reduction of use of the available supply of percolating water upon a basis which gives effect to priorities previously established.79 In sum, the decision of the court of appeal in this case expressly rejected, and the opinion of the supreme court did not adopt, the doctrine of mutual prescription as part of the law of water rights in California. The theoretical complexities of establishing mutual prescription are manifold and probably insurmountable. For rights in the same supply of water to be mutually prescriptive in time and in the same particles can best be described as a "slight of hand" repugnant to the concept of prescriptive rights. Aside from the stipulation and argument of respondents in this case, there never has been any doctrine of mutual prescription as part of the California law of water rights. Appropriation of Surplus Percolating Waters The principle that percolating waters may be appropriated, subject to the paramount right of the overlying landowner to the reasonable use of the water on his overlying land, was acknowledged by dictum in Katz v. Walkinshaw80 lsId. at 721. See also pp. 722-725. 76Id. at 731. inBurr v. Maclay Rancho Water Co., 154 Cal. 428, 98 Pac. 260 (1908). ""San Bernardino v. Riverside, 186 Cal. 7, 198 Pac. 784 (1921). 79180 Pac. (2d) at 731-732. S0Katz v. Walkinshaw, 141 Cal. 116, 134-136, 70 Pac. 663 (1902), 74 Pac. 766 (1903). Several years after the decision in Katz v. Walkinshaw, a district court of appeal stated that water percolating in the soil is not distinctive from the soil itself and is not in that condition subject to appropriation, but when gathered into a stream it becomes separate and distinct from the soil and becomes subject to appropriation. De Wolfskill v. Smith, 5 Cal. App. 175, 181-183, 89 Pac. 1001 (1907). It is necessary to consider this statement in relation to the facts of the case and to the actual decision therein. The water in question was artesian water flowing from abandoned oil wells on unoccupied government land. That water was held subject to appropriation "to the same extent as the waters of a natural spring likewise located." Accordingly, under Congressional authority contained in the Act of 1866 (14 Stat. 253, § 9) and under the laws of the |