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Show 360 LOSS OF WATER RIGHTS IN WATERCOURSES compel him to change the accustomed manner of his use.509 Hence, it results in injury and detriment to the rightful owner.510 The California Supreme Court has said: "The requirement of 'hostility' * * * means not that the parties must have a dispute as to the title during the period of possession, but that the claimant's possession must be adverse to the record owner, 'unaccompanied by any recognition, express or inferable from the circumstances of the right in the latter.'"511 (3) A use of water is not hostile unless there is an actual clash with the rights of the actual owners.512 There is no such clash, and hence no hostility to the title of an upstream appropriator, in the taking of foreign water (water brought into an area from a different watershed) by a downstream claimant, where the upstream appropriator had relinquished all claim in the corpus of the water released from the area served by its system of works.513 (4) In a very early California case, it was held that the adverse possession of an upstream claimant, as against downstream appropriators, remained hostile and was not prejudiced by the fact that from time to time he yielded to the demands of others to allow a certain quantity of water to flow downstream to their diversion, which was between his diversion and that of the prior appropriators. Such action taken for that one reason was held to be no concession to the claim of the downstream appropriators; it was not a factor in the actual clash between the claims of the parties to this dispute.514 Invasion of prior right.-(1) A use of water that does no injury to a prior right is not adverse.515 To establish a prescriptive right, the acts must operate as an invasion of the right of the party against whom the adverse right is set up.516 (2) Any taking by another party of water to which one is entitled, without his consent, is prima facie an invasion of the latter's right. However, to be actionable, it is subject to certain qualifications, among them: It is an invasion of another's right which the latter has a chance to prevent;517 an invasion or S09Lonoaea v. Wailuku Sugar Co., 9 Haw. 651, 661-662 (1895). In this case, the hostility of an adverse claim to a change in the use of water was indicated by the fact that the changed use, which was open and notorious, was enforced. 510Martin v. Burr, 111 Tex. 57, 65, 228 S.W. 543 (1921). 5llKraemerv. Kraemer, 167 Cal. App. (2d) 291, 334 Pac. (2d) 675, 685 (1959). sliPeckv. Howard, 73 Cal. App. (2d) 308, 329, 167 Pac. (2d) 753 (1946). 513Stevens v. Oakdale Irr. Dist., 13 Cal. (2d) 343, 353, 90 Pac. (2d) 58 (1939). Sl4Davis v. Gale, 32 Cal. 26, 36 (1867). slsPeck v. Howard, 73 Cal. App. (2d) 308, 328, 167 Pac. (2d) 753 (1946); Los Angeles v. Glendale, 23 Cal. (2d) 68, 78-80, 142 Pac. (2d) 289 (1943). sliSan Diego v. Cuyamaca Water Co., 209 Cal. 105, 133, 287 Pac. 475 (1930). "It is settled that an appropriation must invade the rights of another before it can destroy them by the establishment of a prescriptive title." Los Angeles v. Glendale, 23 Cal. (2d) 68, 79, 142 Pac. (2d) 289 (1943); accord, Application of Filippini, 66 Nev. 17, 23, 202 Pac. (2d) 535, 538 (1949); Boyce v. Cupper, 37 Oreg. 256, 259, 61 Pac. 642 (1900); Henderson v. Goforth, 34 S. Dak. 441, 447-448, 148 N.W. 1045 (1914). stlHavre Irr. Co. v. Majerus, 132 Mont. 410,415, 318 Pac. (2d) 1076 (1957). |