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Show 362 LOSS OF WATER RIGHTS IN WATERCOURSES And so the mere use of water by a claimant during seasons of abundance of supply for all holders of rights gives him no prescriptive right to continue the use in a season of shortage.526 As several courts have more picturesquely expressed it, "A mere scrambling possession of the water * * * gives no prescriptive right * * *."527 (4) The foregoing principle was developed in controversies dealing with the claimed invasion of rights in the direct flow of surface streams. The physical situation to which it was thus made applicable was distinguished by the California Supreme Court, in a landmark ground water case, from a situation in which water of an underground basin was being depleted by repeated overdrafts upon the common supply:528 Cases are cited for the proposition that an appropriator's rights are not invaded if he continues to receive the quantity of water to which he is entitled. These cases, however, do not deal with the problem of gradual depletion of water stored in a basin or lake, but, rather, with surface streams or ditches in which water flows but is not retained for future use. The type of injury there considered would immediately deprive the owner of water, and the language in the opinions does not apply to an invasion of rights in a stored supply of water to be used only in future years. Ground of action.-(1) To be adverse, the use of water must have been such an invasion of the rights of the person against whom it is claimed that he would have had a cause of action against the invader.S29 This is a well settled general rule of law.530 Co., 209 Cal. 105, 133, 287 Pac. 475 (1930); Clark \.Allaman, 71 Kans. 206, 246, 80 Pac. 571 (1905); Boehler v. Boyer, 72 Mont. 472, 476, 234 Pac. 1086 (1925); Mengv. Coffee, 67 Nebr. 500, 520, 93 N.W. 713 (1903);Dick v. Bird, 14 Nev 161, 166 (1879); Masterson v. Kennard, 140 Oreg. 288, 296, 12 Pac. (2d) 560 (1932); Henderson v. Goforth, 34 S. Dak. 441, 449, 148 N.W. 1045 (1914); Spring Creek Irr. Co. v. Zollinger, 58 Utah 90, 97, 197 Pac. 737 (1921); Miller v. Wheeler, 54 Wash. 429, 438, 103 Pac. 641 (1909); Campbell v. WyomingDev. Co., 55 Wyo. 347, 394, 100 Pac. (2d) 124, 102 Pac. (2d) 745 (1940). SMLast Chance Water-Ditch Co. v. Heilbron, 86 Cal. 1, 20, 26 Pac. 523 (1890). m Union Mill & Min. Co. v. Dangberg, 81 Fed. 73, 91 (C.C.D. Nev. 1897); accord, Bullerdick v. Hermsmeyer, 32 Mont. 541, 554, 81 Pac. 334 (1905);Morris v. Bean, 146 Fed. 423, 433 (C.C.D. Mont. 1906); Carrington v. Crandall, 65 Idaho 525, 532, 147 Pac. (2d) 1009 (1944). "8Pasadena v. Alhambra, 33 Cal. (2d) 908, 931, 207 Pac. (2d) 17 (1949). S29Pabstv. Finmand, 190 Cal. 124, 128, 211 Pac. 11 (1922); Mountain Home Irr. Dist. v. Duffy, 79 Idaho 435, 443, 319 Pac. (2d) 965 (1957); Kingv. Schultz, 141 Mont. 94, 375 Pac. (2d) 108, 111 (1962); County of ScottsBluff v.Hartwig, 160 Nebr. 823, 831, 71 N.W. (2d) 507 (1955); Authors v. Bryant, 22 Nev. 242, 247, 38 Pac. 439 (1894); Dry Gulch Ditch Co. v. Hutton, 170 Oreg. 656, 682, 133 Pac. (2d) 601 (1943); Henderson v. Goforth, 34 S. Dak. 441, 448, 148 N.W. 1045 (1914); Mud Creek Irr., Agric. & Mfg. Co. v. Vivian, 74 Tex. 170, 174-175, 11 S.W. 1078 (1889); Matty v. Weidensteiner, 88 Wash. 398, 405, 153 Pac. 342 (1915). 530San Diego v. Cuyamaca Water Co., 209 Cal. 105, 133, 287 Pac. 475 (1930). |
