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Show 404 LOSS OF WATER RIGHTS IN WATERCOURSES The absence of such a finding is fatal to a judgment establishing a prescriptive right.772 In 1908, the Oregon Supreme Court held that when the claimant of a prescriptive right has made a prima facie showing of adverse use, based upon facts necessary to establish it, "the burden of showing that such user was not a substantial interference with the rights of others was thereby shifted to the parties questioning such claim."773 The relation of disabilities to burden of proof of prescriptive rights was litigated in at least two Texas cases.774 Burden of proof: Permissive use.- The burden in the first instance is upon the adverse claimant to prove his title by prescription, as noted under the immediately preceding subtopic. After such claimant has shown open, visible, continuous, and unmolested use of the water for the statutory period, he established a prima facie case and his use will be presumed to be under a claim of right and not by license. The burden of rebutting this presumption by showing that the use was permissive then devolves upon the true owner.775 Possibility of Establishing Prescriptive Water Right Negated or Questioned In a number of States, the possibility of establishing a prescriptive right as against one or more kinds of water rights has been negated or questioned by legislation or in one or more reported court decisions.776 ^California Pastoral & Agric. Co. v. Madera Canal & Irr. Co., 167 Cal. 78, 89-90, 138 Pac. 718 (1914); Crain v. Hoefling, 56 Cal. App. (2d) 396, 402, 132 Pac. (2d) 882 (1942). 773Hough v. Porter, 51 Oreg. 318, 433, 95 Pac. 732 (1908), 98 Pac. 1083, 102 Pac. 728 (1909). 774Austin v. Hall, 93 Tex. 591, 596-597, 57 S. W. 563 (1900); Martin v. Burr, 111 Tex. 57, 66-67, 228 S. W. 543 (1921). llsTe Selle v. Storey, 133 Mont. 1, 5-6, 319 Pac. (2d) 218 (1957); Kougl v. Curry, 73 S. Dak. 427, 432-433, 44 N.W. (2d) 114 (1950); Lalakeo v. Hawaiian Irr. Co., 36 Haw. 692, 708 (1944); Morgan v. Walker, 217 Cal. 607, 615, 20 Pac. (2d) 660 (1933); Gardner v. Wright, 49 Oreg. 609, 628, 91 Pac. 286 (1907). 776 In addition to the legislation and court decisions discussed below, statutes or court decisions in some States have specifically limited the acquisition of prescription as against water or water rights held by the State, the United States, or other public entity. (See the subtopics "Public entities or agencies," "The public," "The State," and "The United States" under "Establishment of Prescriptive Title-Adverse Parties," supra.) Similar limitations expressly included in statutes of limitations with respect to land, or applied in court decisions construing such statutes, may apply by analogy to prescription with respect to water rights. Regarding some related questions, see the later discussion of "Relation to Necessity for a Valid Statutory Appropriation." It also may be noted that a Hawaiian statute provides that no title or right to or across registered land (for example, for an irrigation ditch) in derogation of that of the registered owner shall be acquired by prescription or adverse possession except as |