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Show 396 LOSS OF WATER RIGHTS IN WATERCOURSES The upper riparian owner or appropriator ordinarily is not concerned with the use of the water after it has passed beyond the boundaries of his land or his point of diversion, as the case may be. On the contrary, generally he no longer has any right or interest in such water.716 The downstream diversion ordinarily does not interfere with the flow of the water above; and so the lower owner invades no right of the upper owner which the latter is called upon to notice.717 The upper riparian proprietor or appropriator, being uninjured by another's use of the water that has passed his land, has no cause for complaint or redress and no right of action to prevent the lower diversion and use.718 It is not such an overt act as to constitute an ouster or sufficient to impart notice of a hostile intention to assert a right by prescription in the absence of injury to the upstream party; hence evidence of such downstream use generally is not sufficient to set the statute of limitations in motion.719 they could acquire no rights against an upper riparian owner by diversion and user for the period required to gain a title by prescription, or for any period, however long. This principle of law is too well settled to merit discussion. * * * The upper riparian proprietor has no cause for complaint or redress concerning the use of water after it has passed his land. * * *" In Lakeside Ditch Co. v. Crane, 80 Cal. 181, 183, 22 Pac. 76 (1889), the court said, in an action between rival appropriators, "If the plaintiff's ditch was simply diverting water which the defendants allowed to pass down the stream while the head-gate of their ditch was closed, the act of the plaintiff in diverting the water thus permitted to pass down the stream could not, in the nature of things, be adverse to the right of the defendants. The latter could not complain, and title by prescription cannot be acquired, unless the acts constituting the adverse use are of such a nature as to give a cause of action in favor of the person against whom those acts are performed. * * *" A Texas court of civil appeals has indicated that a riparian owner is in no position to claim that a downstream owner diverts water to nonriparian land, because he is in no way injured thereby. Fort Quitman Land Co. v. Mier, 211 S.W. (2d), 340, 344 (Tex. Civ. App. 1948, error refused n.r.e.). "6Peake v. Harris, 48 Cal. App. 363, 382, 192 Pac. 310 (1920);Dalton v. Kelsey, 58 Oreg. 244, 253-254, 114 Pac. 464 (1911); Davis v. Chamberlain, 51 Oreg. 304, 317, 98 Pac. 154 (1908), cited in Day v. Hill, 241 Oreg. 507, 406 Pac. (2d) 148, 150 (1965). The Kansas Supreme Court, in Clark w.Allaman, 71 Kans. 206, 245-246, 80 Pac. 571 (1905), adopted the principle in the following language: "The judgment in favor of the plaintiff cannot be justified on the ground of prescription. Her acceptance and use of water flowing down Rose creek to her land involved the exercise of a right which she herself possessed, without encroachment upon the rights of upper proprietors, and they lost all property in the water when it left their land. Hence, her conduct lacked the adversary quality necessary to the foundation of prescriptive rights." linPabstv. Finmand, 190Cal. 124, 128, 211 Pac. 11 (1922);Holmesv.Nay, 186 Cal. 231, 235-236, 199 Pac. 325 (1921); Crawford Co. v. Hathaway, 67 Nebr. 325, 374-375, 93 N.W. 781 (1903);£>«Hrt v. Thomas, 69 Nebr. 683, 684, 96 N.W. 142 (1903). ™Cory v. Smith, 206 Cal. 508, 511, 274 Pac. 969 (1929); Bathgate v. Irvine, 126 Cal. 135, 141, 58 Pac. 442 (1899); Morgan v. Walker, 217 Cal. 607, 615, 20 Pac. (2d) 660 (1933). 719Beers v. Sharpe, 44 Oreg. 386, 394-395, 75 Pac. 717 (1904);Harrington v.Demaris, 46 Oreg. Ill, 115, 77 Pac. 603, 82 Pac. 14 (1904V |