OCR Text |
Show 386 LOSS OF WATER RIGHTS IN WATERCOURSES that he is taking only that to which he is entitled by virtue of his riparian right.666 The mere exercise of a riparian right gains no title by prescription; it is necessary that there be an actual interference with the rights of the party against whom the prescriptive right is claimed.667 (3) Texas, (a) In Texas, the rules appear to be unsettled or imprecise as to when the cause of action of the injured party accrued as against an adverse water user and the period of limitation begins to run.668 Specifically, as to the circumstances under which a substantial diversion of water will set the statute of limitations in motion as against a downstream claimant, may the statute begin to run as against a claimant who is presently making no use of the water and therefore is suffering no immediate present damage; or must he be actually deprived of its use at a time when he really needs the water for his current or immediately prospective operations? (b) Two pertinent cases were decided early in the 20th century by the old court of civil appeals. In the first case, a cause of action against an upper riparian proprietor's use of water on nonriparian land was held to arise even though the lower one then suffered no actual damage, because if he delayed long enough a prescriptive right would arise upstream. In the later case, it was held that the only immediate necessity alleged for a requested temporary injunction was to prevent defendants from obtaining a prescriptive right, but that the institution of the suit by the riparian owner for such an injunction restraining diversion of water to nonriparian lands had the effect of preventing defendants from obtaining a prescriptive right, hence the temporary injunction was denied.669 (c) Subsequently, in Humphreys-Mexia Company v. Arseneaux, the Texas Supreme Court observed:670 [I] t is obvious that a court of equity would not, even at the suit of a riparian owner, enjoin the diversion of riparian water, unless the complainant was injured thereby, or under circumstances that would reasonably show a hostile and adverse user of sufficient moment to set in motion the statute of limitation, or prescription. The oil company in this case, however, not being a riparian owner, could not object to the diversion of riparian water, and was not entitled to an injunction to prevent such diversion, if any. This is so for the reason that the oil company had no justiciable interest in the riparian water. M6Pabstv. Finmand, 190 Cal. 124, 128-129, 211 Pac. 11 (1922). 661 Oliver v.Robnett, 190 Cal. 51, 55, 210 Pac. 408 (1922). 668 See Carter, J.D., "The Position of the Board of Water Engineers on the Scope of Riparian Rights," Proc, Water Law Conferences, Univ. of Tex. 194 (1952, 1954); Hildebrand, I.P., "The Rights of Riparian Owners at Common Law in Texas," 6 Tex. L. Rev. 19 (1928); Hutchins, W.A., "The Texas Law of Water Rights," 452 (1961). 669Hall v. Carter, 33 Tex. Civ. App. 230, 234-235, 77 S.W. 19 (1903, error refused); Biggs v. Leffingwell, 62 Tex. Civ. App. 665, 667-668, 132 S.W. 902 (1910). 670Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 610, 610-611, 297 S.W. 225 (1927). |