| OCR Text |
Show 374 LOSS OF WATER RIGHTS IN WATERCOURSES Claim of Right Essential facets.-{\) To be adverse, the use of the water must have been made under a claim of right or, as it is sometimes stated, under color of title and not by virtue of another right.s92 "Color of title" is considered later. (2) A mere claim to the use of water, however long continued, cannot of itself establish a prescriptive right.593 In establishing actual possession there must be an intent to hold the property as its owner,594 a positive assertion of title inconsistent with and in derogation of the rights of everyone else, coupled with acts of ownership which proclaim to the world and bring notice to the owner that a right is claimed in the property over which the claimant is seeking to exercise dominion.595 A sufficient showing of such claim of right may be made by evidence of the conduct of the parties, such as where they exercised the usual acts of ownership.596 But in order to make good a claim of title by prescription grounded on adverse possession, notice of the adverse claim must have been brought home to all whose rights the claim infringed.597 (3) This adverse assertion of a right to divert and use water must be not only a claim of right, but also a claim of paramount right598-otherwise stated as "unmistakably an assertion of a claim of exclusive ownership in the occupant."599 (4) In establishing a prescriptive right, the rightfulness or wrongfulness of the claim is immaterial.600 The reason there is such an institution as S9iFurtado v. Taylor, 86 Cal. App. (2d) 346, 352, 194 Pac. (2d) 770 (1948); Warren v. Crafton Water Co., 139 Cal. App. (2d) 314, 321, 293 Pac. (2d) 506 (1956); "Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely," Cal. Civ. Pro. Code § 324 (West 1954); Bowen v. Shearer, 100 Colo. 134, 136, 66 Pac. (2d) 534 (1937); Linford v. Hall & Son, 78 Idaho 49, 54, 297 Pac. (2d) 893 (1956); "The claim must be hostile to that of the person against whom it is asserted," Morris v. Bean, 146 Fed. 423, 433 (C.C.D. Mont. 1906); Jones v. Schmidt, 170 Nebr. 351, 102 N.W. (2d) 640, 646 (1960); The use "must be held under a claim of title, exclusive of any other, as one's own * * *," Authors v. Bryant, 22 Nev. 242, 247, 38 Pac. 439 (1894);Dry Gulch Ditch Co. v. Hutton, 170 Oreg. 656, 676, 133 Pac. (2d) 601 (1943); Heard v. Texas, 146 Tex. 139, 146, 204 S.W. (2d) 344 (1947); Farwellv. Brisson, 66 Wash. 305, 308, 119 Pac. 814 (1911). S93Turner v. East Side Canal & In. Co., 169 Cal. 652, 657, 147 Pac. 579 (1915); Cox v. Clough, 70 Cal. 345, 347, 11 Pac. 732 (1886). S94Elsasser v. Szymanski, 163 Nebr. 65, 68, 77 N.W. (2d) 815 (1956). S95Smith v. Duff, 39 Mont. 374, 378, 102 Pac. 981 (1909); Fairview v. Franklin Maple Creek Pioneer In. Co., 59 Idaho 7, 17, 79 Pac. (2d) 531 (1938); Furtado v. Taylor, 86 Cal. App. (2d) 346, 352, 194 Pac. (2d) 770 (1948). 596Evans Ditch Co. v. Lakeside Ditch Co., 13 Cal. App. 119, 129, 108 Pac. 1027 (1910). 597Cook v. Hudson, 110 Mont. 263, 282, 103 Pac. (2d) 137 (1940). 598Martin v. Burr, 111 Tex. 57, 65-66, 228 S.W. 543 (1921). 599Heard v. Texas, 146 Tex. 139, 146, 204 S.W. (2d) 344 (1947). 600Gardnerv. Wright, 49 Oreg. 609, 626-627, 91 Pac. 286 (1907). |
