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Show PRESCRIPTION 409 The court is always reluctant to overrule a previous decision unless the necessity therefor is apparent in the subsequent litigation. It is not necessary to decide the question in this case and we therefore refrain from so doing. In a 1965 case, without specifically deciding this issue and without mentioning any previous Oregon cases in this regard, the court said, among other things:800 Plaintiffs further contend that even if it should be found that they did not secure any statutory rights by appropriation or that they lost such rights by nonuse, they nevertheless have water rights to Walker Creek by prescriptive use. Assuming water rights could have been acquired by prescription at the time claimed, plaintiffs do not have prescriptive rights. As is true in other instances of adverse possession, the use establishing the right must be adverse. (3) Texas. In 1921 the Texas Supreme Court said, in Martin v.Burr, "It is not an open question in Texas that an upper riparian proprietor may, by prescription, acquire the right to use the water of a running stream, in a special way and in excess of the right arising from ownership of his land, to the injury and detriment of lower riparian proprietors."801 That this might be done by analogy to the statute of limitations barring the right of entry upon lands was acknowledged by the supreme court in the earliest cases.802 However, in 1931 the Galveston Court of Civil Appeals, referring to a dictum of the Texas Supreme Court in Moil v. Boyd,S03 considered it "no authority for the proposition that the mere use by pumping during the crop season of a large portion or all of the normal flow of a stream for any number of years could deprive a riparian land owner of his riparian right in the water in the stream. Such right, in our opinion, can only be taken by condemnation, or lost by estoppel, neither of which is pleaded nor shown by any evidence in this case."804 With respect to the Galveston court's apparent attempt to negate the *wDay v. Hill, 241 Ore. 507, 406 Pac. (2d) 148, 149 (1965). 801 Martin v. Burr, 111 Tex. 57, 65, 228 S.W. 543 (1921). And in a 1927 case, the court said, "[I] t is obvious that a court of equity would not, even at the suit of a riparian owner, enjoin the diversion of riparian water, unless the complainant was injured thereby, or under circumstances that would reasonably show a hostile and adverse user of sufficient moment to set in motion the statute of limitation, or prescription * * *." Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 610-611, 297 S.W. 225 (1927). M2Haas v. Choussard, 17 Tex. 588, 590 (1856); Rhodes v. Whitehead, 27 Tex. 304, 310-313 (1863); Baker v. Brown, 55 Tex. 377, 381 (1881). See also Mud Creek In., Agric. & Mfg. Co. v. Vivian, 74 Tex. 170, 174, 11 S. W. 1078 (1889); Gibson v. Carroll, 180 S.W. 630, 634 (Tex. Civ. App. 1915). With respect to the Texas 10-year statute and another 3-year statute of limitations, see "Basis of the Prescriptive Right-Analogy to Adverse Holding of Land-The Texas situation," supra. w3Motl v. Boyd, 116 Tex. 82, 127-128, 286 S.W. 458 (1926). ""Freeland v. Peltier, 44 S.W. (2d) 404, 409 (Tex. Civ. App. 1931). |