OCR Text |
Show PRESCRIPTION 387 The court was not specific as to what would constitute an adverse use of sufficient moment to set the statute in motion. (The court said the riparian proprietor could use the stream water on either riparian or nonriparian land "unless it thereby interfered with some other riparian owner.")671 The supreme court has not elucidated the matter further. In a more recent decision in Woody v. Durham by the Fort Worth Court of Civil Appeals, the court stated that in the Humphreys-Mexia case "it was intimated but not decided that injunction would lie to prevent diversion of water in such manner as would set in motion the statute of limitations, irrespective of actual damage."672 (d) The case of Woody v. Durham, mentioned above, involved a suit by riparian owners, who had not yet put the stream water to use but planned to do so when preparation of their farm was completed, to enjoin the diversion of water to nonriparian land which threatened to injure them materially when they were ready to use the water to which their riparian rights attached. The Fort Worth court took the position that damage to the present or potential enjoyment of a riparian owner's property by nonriparian diversion gives rise to a cause of action for injunction; and that injunction should be granted to restrain the wrongful continuing diversion or threatened diversion to prevent irreparable damage or to avoid vexatious litigation or a multiplicity of lawsuits. The court said, "We do not believe that appellants ought to be put to the trouble and expense of filing a suit each time appellee starts pumping water from that creek, or to risk losing their rights by prescription, and we think the injunction should have been granted."673 Accordingly, an injunction was granted. The Texas Supreme Court refused to issue a writ of error. Hence the appellate court's holdings and comments can have no standing in opposition to anything the supreme court may have held in these regards.674 Tolling of the statute.-(I) In a 1953 case, the California Supreme Court stated that ordinarily the filling of an action, either by the person asserting a prescriptive right or by the person against whom the statute of limitations is running, will interrupt the running of the prescriptive period, and that the statute will be tolled while the action is actively pending. This does not apply to an action that has been dismissed or abandoned.675 In 1890, this court had 671116 Tex. at 610. 672 Woody v. Durham, 267 S.W. (2d) 219, 221 (Tex. Civ. App. 1954, error refused). 673 Id. 674 Related aspects of this case are discussed in chapter 13 under "Remedies for Infringement-Injunction-Riparian Owners-Texas." With respect to nonriparian use of water, see also the discussion in chapter 10 at notes 204 and 710. Regarding the apparent attempt in a 1931 court of civil appeals case to negate the possibility of acquiring prescriptive water rights as against riparians, notwithstanding statements to the contrary by the Texas Supreme Court, see "Establishment of Prescriptive Title-Possibility of Establishing Prescriptive Water Right Negated or Questioned-Questionings," infra. 615Yorba v. Anaheim Union Water Co., 41 Cal. (2d) 265, 270, 259 Pac. (2d) 2 (1953). |