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Show PRESCRIPTION 421 Regardless of whether the party whose right has been prescripted is injured by a change in the manner of exercising the right, other parties may be so injured. Therefore, the rules with respect to changes in the exercise of appropriative rights apply to rights vested by prescription. For example, the principle expressed in the California Civil Code862 -and reenacted in the Water Code863-with respect to changes in the exercise of appropriative rights acquired thereunder has been expressly applied in several cases of change or attempted change in the exercise of prescriptive rights without regard to whether such rights represented appropriations made pursuant to the sta- tute.864 The proper form of judgment in a case in which a riparian owner sues to establish his riparian rights, but in which defenses of prescription are established, said the California Supreme Court, is "to declare the right of the respective defendants to make the diversions of water from * * * [the source of supply] to the quantity as to which the prescriptive right was found to be established and to permit them to continue the diversion of such quantity, but to enjoin them from making any greater diversion of the water of the river by means of improved dams or canals or otherwise."865 (2) Point of diversion. As between cases of statutory appropriation on the one hand, and cases of prescription without appropriating water under the statute on the other hand, "there can be no difference in principle as to a change in the point of diversion."866 That is to say, the change may be lawfully made if others are not thereby injured and if the change does not conflict with some controlling statutory provision. In a 1915 Washington case, after noting that the law seems to be well settled that an appropriator may change his point of diversion so long as such change does not result in damage to others, the supreme court held:867 While this general rule seems to have been applied for the most part to appropriators strictly speaking, which it must be conceded respondent is not, but one claiming the water [by prescription] irrespective of appropriation laws, yet it seems applicable by analogy here. * * * We think these changes in points of diversion did not affect the continuity of respondent's adverse use. (3) Place of use. The same rule applies to changes in place of use. "The owner of a prescriptive right to the waters of a stream has not the unconditional right to change the place of its use at his pleasure." Where others 862Cal. Civ. Code § 1412(1872). ***Cdl. Water Code § 1706 (West 1956). M4Cheda v. Southern Pac. Co., 22 Cal. App. 373, 376-377, 134 Pac. 717 (1913); Willits Water & Power Co. v. Landrum, 38 Cal. App. 164, 174, 175 Pac. 697 (1918); Scott v. Fruit Growers'Supply Co., 202 Cal. 47, 52-53, 258 Pac. 1095 (1927). MS£ Clemens Horst Co. v. TarrMin. Co., 174 Cal. 430, 438, 163 Pac. 492 (1917). 866 Willits Water & Power Co. v. Landrum, 38 Cal. App. 164, 174, 175 Pac. 697 (1918). M7A/a//y v. Weidensteiner, 88 Wash. 398, 403-404, 153 Pac. 342 (1915). |