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Show 376 LOSS OF WATER RIGHTS IN WATERCOURSES Payment of taxes.-(I) Statutes of limitation of actions to recover real property in a majority of the Western States specifically include some requirement relating to payment by the adverse claimant (which includes, specifically or by necessary implication, his predecessors or grantors) of taxes levied on the property as an element of adverse use. In some States in this group, this is a general requirement; in others it is included in only one or two out of several categories. For details, see "Statute of Limitations-Abstracts of Western State statutory limitation periods pertaining to adverse possession of land," below. (2) According to Wiel, "The requirement that taxes be paid is purely statutory, and does not exist at common law."607 (3) Although the land limitation statutes of a substantial percentage of Western States do not require payment of taxes to establish a prescriptive right, the high courts of several Western States have indicated that regardless of the lack of legal necessity of payment of taxes by an adverse claimant, a showing of such payment has a positive and important value in supporting his claim of ownership by adverse possession, and that the failure to make such showing over a long period of time tends to weaken his claim. For example, the Oregon Supreme Court said in 1949: "While payment of taxes if not essential to adverse possession, the failure to pay the same by a person claiming title by adverse possession is important evidence tending to refute such claim. * * * As a general rule, a person pays taxes on that which he claims to own."608 (4) In a jurisdiction in which legislation requires payment of such taxes as are levied and assessed against the property, prescription fails if there is no evidence of payment of taxes.609 The vital importance of this element of a prescriptive right in such a jurisdiction was thus emphasized in the language of the Colorado Supreme Court:610 Continuous use of a water right vests possession; if this possession of such water right, considered as land, is adverse and 607 Wiel, supra note 566, § 590. 6M Volchers v. Seymour, 187 Oreg. 170, 210 Pac. (2d) 484 (1949). According to the Oklahoma Supreme Court (and the Kansas Supreme Court before it), "The payment of taxes is not a controlling circumstance, but it is one of the means whereby a claim of ownership is asserted, and the failure to pay taxes for so long a time tends to weaken a claim of ownership by adverse possession." Anderson v. Francis, 177 Okla. 47, 57 Pac. (2d) 619 (1936); Finn v. Alexander, 102 Kans. 607, 171 Pac. 602 (1918). In a 1958 decision, the Nebraska Supreme Court included a quotation from one of its very early opinions to the effect that, with respect to adverse possession, " ' * * * taxation of the land for a series of years to the person claiming it, and the payment of taxes by him are competent evidence tending to show ownership.'" Worm v. Crowell, 165 Nebr. 713, 722, 87 N.W. (2d) 384 (1958), citing Horbach v. Miller, 4 Nebr. 31 (1875). 609Cdrrington v. Crandall, 65 Idaho 525, 532, 147 Pac. (2d) 1009 (1944); Kraemer v. Kraemer, 167 Cal. App. (2d) 291, 334 Pac. (2d) 675, 684-685 (1959). 6l0Kountz v. Olson, 94 Colo. 186, 192, 29 Pac. (2d) 627 (1934). |