OCR Text |
Show PRESCRIPTION 361 infringement of the rightful owner's claim which he may at any time assert but fails to do so until the full statutory period has passed.S18 And it must be a substantial invasion.519 "Prescriptive rights to water cannot be acquired until the owner of the water has been deprived of its use in such substantial manner and degree as to notify him that his right is being invaded."520 (3) In California, a taking of surplus or excess water above the reasonable beneficial requirements of prior appropriators and riparian and overlying land- owners is not injurious and hence not an invasion of prior or paramount rights. This is because, since adoption of the constitutional amendment of 1928,521 all rights of whatever character are limited to reasonable beneficial use.522 Deprivation of use of water.-(I) To constitute an invasion of the right of a prior claimant, he must be deprived of the use of water to which he is entitled. "One of the essential elements of claim of prescriptive right to the use of water for irrigation, is that the claimant must show that he has used the water during each of the irrigation seasons of the five-year period when it was actually needed by the prior owner."523 There is no such deprivation, and consequently no basis upon which to found a prescriptive right, in the use of waters at times when the owner of record does not require them for his own purposes.524 (2) Later, under "Statute of Limitations-Statute set in motion," it is brought out that, although the consensus of most western authorities is that to set the statute of limitations in motion there must be an actual deprivation of the rightful owner's use of the water, modifying factors have appeared in some court decisions in California and Texas, chiefly with respect to the necessity of showing actual present damage. (3) While there is sufficient water flowing in a stream to supply the wants of all parties, the use of water by any one does not deprive others of their water supply and hence is not an invasion of their rights. This principle has been recognized generally throughout the West over a long period of time.525 MBullerdickv. Hermsmeyer, 32 Mont. 541, 554, 555, 81 Pac. 334 (1905). 519Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 414, 100 Pac. (2d) 124, 102 Pac. (2d) 745 (1940). SMIh re Alpowa Creek, 129 Wash. 9, 14, 224 Pac. 29 (1924); accord, Mountain Home Irr. Dist. v. Duffy, 79 Idaho 435, 443, 319 Pac. (2d) 965 (1957). 511 Cal. Const, art. XIV, § 3. s"See Pasadena v. Alhambra, 33 Cal. (2d) 908, 926, 207 Pac. (2d) 17 (1949); Orchard \. Cecil F. White Ranches, Inc., 97 Cal. App. (2d) 35, 43, 217 Pac. (2d) 143 (1950). ^Mountain Home Irr. Dist. v. Duffy, 79 Idaho 435, 440, 319 Pac. (2d) 965 (1957). "That the claimant used water at a time when plaintiff had need of it * * * ." Havre Irr. Co. v. Majerus, 132 Mont. 410, 415, 318 Pac. (2d) 1076 (1957); accord, Bounds v. Corner, 53 N. Mex. 234, 245, 205 Pac. (2d) 216 (1949); Henderson v. Goforth, 34 S. Dak. 441, 447-449, 148 N.W. 1045 (1914); Far we// v. Brisson, 66 Wash. 305, 308, 119 Pac. 814 (1911); Sander v. Bull, 76 Wash. 1, 6, 135 Pac. 489 (1913). S24Stepp v. Williams, 52 Cal. App. 237, 258, 198 Pac. 661 (1921). One is not injured by any other diversion so long as his own lands are supplied. Ison v. Sturgill, 57 Oreg. 109, 120, 109 Pac. 579, 110 Pac. 535 (1910). 525Egan v. Estrada, 6 Ariz. 248, 253, 56 Pac. 721 (1899); San Diego v. Cuyamaca Water |