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Show PRESCRIPTION 389 Limitation and prescription.-(l) In 1887, the California Supreme Court held that a right to property founded upon the statute of limitations is a prescriptive right. The settled rule in California, said the court, is "that the possession of property of the requisite character and time confers a title to the property. * * * So far, therefore, as the title to property is concerned,-or, at all events, so far as the title to real property is concerned,-prescription and limitation are convertible terms; and a plea of the proper statute of limitations is a good plea of a prescriptive right. The language of decisions with reference to water rights has been in accordance with this view."681 (2) In 1921, the Texas Supreme Court distinguished a defense of bar by limitation from an affirmative assertion of paramount right acquired by prescription. Plaintiffs, lower riparian owners, brought suit to establish their riparian rights as against defendants, who were upstream riparian owners. The supreme court held that both (a) the defense of bar by limitation after 4 years682 and (b) the affirmative claim of paramount prescriptive right after 10 years-by analogy to the longest period of limitation-should have gone to the jury to decide. This holding occasioned comment and question, on the ground that the adverse user would be in as good a position as against his opponent after 4 years as after 10 and hence would not need to rely upon prescription. The supreme court did not expound the historical basis of its distinction between limitation and prescription, nor its holding that both should have gone to the jury, but it did make the distinction unequivocally. The reasoning can only be conjectured.683 Establishment of Prescriptive Title Title to a prescriptive right is determined only by a judicial decree in an action in which the right is established by the adverse claimant. In a number of States, the possibility of establishing a prescriptive right as against one or more kinds of water rights has been negated or questioned by legislation or in one or more reported court decisions. This is discussed later under "Possibility of Establishing Prescriptive Water Right Negated or Questioned." Adverse Parties Prescription arises as a result of acts performed by the adverse claimant against the party whose right is thereby invaded. 6BlAlhambra Addition Water Co. v. Richardson, 72 Cal. 598, 600-601, 14 Pac. 379 (1887). 683Now Tex. Rev. Civ. Stat. Ann. art. 5529 (1958) which provides "Every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward." 683Martin v. Burr, 111 Tex. 57, 64-66, 228 S.W. 543 (1921). See discussion at note 437 supra. |