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Show 384 LOSS OF WATER RIGHTS IN WATERCOURSES the use of the water "in such a substantial manner as to notify them that their rights are being invaded."6SS Thus prescription does not begin to run until the party against whom the prescriptive right is claimed has notice, actual or constructive; that is, where in the absence of actual notice there is evidence of circumstances from which notice may be reasonably presumed, constructive notice has the same effect as actual notice.656 (d) Prescription or adverse use will not mature into a title as against the United States. Hence, in the case of a claim of adverse use against an entryman or patentee of downstream riparian land, the statute of limitations does not begin to run until title to the downstream land has passed from the United States.657 (e) Inasmuch as permissive use is not adverse to the claim of the rightful owner, where the evidence clearly shows that the entry and use were under a license only, "convincing evidence of the repudiation of the license, and an unequivocal assertion of a right hostile to the licensor, brought home to him, should be required to set the statute in motion."658 (f) In one of its decisions respecting appropriation of water by private enterprises for sale to the public, the California Supreme Court rejected an argument that such an appropriator at once institutes an effectual adverse claim to all the water that it intends to take or use in the future. "The taking of water into a canal and allowing it to run to waste in the expectation that customers may be found who will use it at some future time does not constitute a present beneficial use of the wasted water, so as to initiate the period of prescription therefor."659 (2) California, (a) Prior to the constitutional amendment of 1928 limiting riparian and all other rights to the use of water to reasonable beneficial use,660 the rule of the California courts, as expressed in several decisions rendered during this period,661 was that where it appeared that continuance of an appropriator's acts complained of would ripen into an adverse right and thereby deprive the riparian owner of a right of property, it was not necessary 655Sander v. Bull, 76 Wash. 1, 6, 135 Pac. 489 (1913). 656Martin v.Burr, 111 Tex. 57, 65-66, 228 S.W. 543 (1921). '"Mathewsv. Ferrea, 45 Cal. 51, 53 (1872). 658 Jensen v. Hunter, 108 Cal. XVII, 5 Cal. U. 83, 91, 41 Pac. 14 (1895). 659 Turner v. East Side Canal & In. Co., 169 Cal. 652, 657, 147 Pac. 579 (1915). ««°Cal. Const, art. XIV, § 3. 661 Stanford v. Felt, 71 Cal. 249, 250, 16 Pac. 900 (1886); Mott v. Ewing, 90 Cal. 231, 237, 27 Pac. 194 (1891); California Pastoral & Agric. Co. v. Enterprise Canal & Land Co., 127 Fed. 741, 742-743 (C.C.S.D. Cal. 1903); Southern Cal. Inv. Co. v. Wilshire, 144 Cal. 68, 74, 77 Pac. 767 (1904); Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 333-334, 88 Pac. 978 (1907); San Joaquin & Kings River Canal & In. Co. v. Fresno Flume & In. Co., 158 Cal. 626, 112 Pac. 182 (1910); Shurtleff v. Bracken, 163 Cal. 24, 26, 124 Pac. 724 (1912); Fresno Canal & In. Co. v. People's Ditch Co., 174 Cal. 441, 445-446, 163 Pac. 497 (1917); Pabst v. Finmand, 190 Cal. 124, 132, 211 Pac. 11 (1922); Gould v. Eaton, 117 Cal. 539, 543, 49 Pac. 577 (1897); Huffner v. Sawday, 153 Cal. 86, 91, 94 Pac. 424 (1908). |
