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Show 364 LOSS OF WATER RIGHTS IN WATERCOURSES license to use water or a right of way therefor, as the case may be, which can never ripen into a prescriptive title or easement.538 (3) Executed parol licenses to the use of water have been upheld in favor of the licensees as against claimants by adverse possession.539 (4) Where the claimant has shown open, visible, continuous, and un- molested use for the statutory period, such use will be presumed to be under a claim of right and not by license. The burden of showing otherwise is on the owner. An Idaho watermaster delivered water to the holder of a decreed right in time of scarcity of water, in preference to the holder of an undecreed right initiated by application and permit prior in point of time to that upon which the decree was based, as the appropriation statute specifically directed him to do. The supreme court held that this receipt of water by the holder of the decreed right was not an adverse use, but a permissive use, based on the watermaster's statutory duty; hence it could not be the basis of a prescriptive right.541 Revocation of permission-(I) Even though a use of water may have been permissive in the first instance, nevertheless if thereafter exercised under a claim of right, the original character of the use does not prevent the acquisition of a prescriptive right. But in order to initiate the acquisition of a prescriptive right after exercise of the right has been made under permission of the rightful owner, there must be some change of condition-notice of some definite character on the part of the adverse user to the rightful owner that the permission was repudiated and that the adverse user was establishing a right antagonistic and adverse to that of the rightful owner.542 (2) Convincing evidence of the repudiation of a license and of an unequivocal assertion of a right hostile to the licensor, brought home to him, would be required to set the statute in motion.543 S3*Heinkel v. McAllister, 113 Cal. App. (2d) 500, 502, 504, 248 Pac. (2d) 438 (1952); Bowen v. Shearer, 100 Colo. 134, 136, 66 Pac. (2d) 534 (1937); Joblingv. Tuttle, 75 Kans. 351, 362-364, 89 Pac. 699 (1907); Motl v. Boyd, 116 Tex. 82, 127-128, 286 S.W. 458 (1926); Yeagerv. Woodruff, 17 Utah 361, 369, 53 Pac. 1045 (1898). M9Ortman v. Dixon, 13 Cal. 33, 36 (1859); Northern Cal. Power Co., Consol. v. Flood, 186 Cal. 301, 305, 199 Pac. 315 (1921). swTe Selle v. Storey, 133 Mont. 1, 5-6, 319 Pac. (2d) 218 (1957); Kouglv. Curry, 73 S. Dak. 427, 432-433, 44 N.W. (2d) 114 (1950). In a 1960 Nebraska case, the supreme court could not regard as credible the evidence that possession and use of land was permissive and not under claim of ownership. Jones v. Schmidt, 170 Nebr. 351, 102 N.W. (2d) 640, 646-647 (1960). MiBig Wood Canal Co. v. Chapman, 45 Idaho 380, 405, 263 Pac. 45 (1927). s42Irion v. Hyde, 107 Mont. 84, 92, 95, 81 Pac. (2d) 353 (1938); Farmers' Coop. In. Co. v. Alsager, 47 Idaho 555, 558, 277 Pac. 430 (1929); Bachman v. Reynolds Irr. Dist., 56 Idaho 507, 517-519, 55 Pac. (2d) 1314 (1936); Weidensteiner v. Mally, 55 Wash. 79, 81, 104 Pac. 143 (1909); Gustin v. Harting, 20 Wyo. 1, 19, 121 Pac. 522 (1912). S43 Jensen v. Hunter, 108 Cal. XVII, 5 Cal. U. 83, 91, 41 Pac. 14 (1895). |
