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Show PRESCRIPTION 399 Another Washington controversy involved a situation in which the opposing parties were not upper and lower riparian owners in the usual sense. Rather, one party held land riparian to the north branch of a stream and the other land riparian to the south branch. Both diverted water below the forks. The use by plaintiffs predecessor was an interference with the use by defendant's and hence was adverse-so adverse as to lead to a physical conflict and was recognized as adverse by an agreement to divide the water into two parts by arbitration. Under the evidence, plaintiff was held entitled to the sole use of one-half of the stream.731 (c) California. An appropriative right had become vested by prescription against certain downstream riparian owners. Thereafter, they wrongfully obstructed the flow of water in to the appropriator's ditch and threatened to continue doing so. The appropriator was held entitled to an injunction restraining further infringement of his right; otherwise, had the threatened continuance of the obstruction been carried out, the upstream appropriative- prescriptive right would have been in danger of loss by prescription on the part of the downstream riparians.732 In another case, owners of lands distant from a stream and not riparian thereto had gone upon the lands of another through which the stream was flowing, and by means of dams and ditches diverted water thereon and conveyed it away to their own lands. The California Supreme Court held they had acquired a prescriptive right to the use of both ditch and water:733 The lands of the plaintiffs herein are not riparian as to the waters in question, nor is the point of their diversion of such waters below the lands of the defendants which are riparian to such waters, but is upon the lands of the defendants at a point which would constitute an interference with their riparian rights therein. The cases cited by appellants which deny to a lower riparian proprietor emphasized that "it is only by the actual interference with the rights of the upper riparian owner." Under the facts of the instant case, prescription was denied. Smith v. Nechanicky, 123 Wash. 8,11-15, 211 Pac. 880 (1923). See also/n re Ahtanum Creek, 139 Wash. 84, 99-101, 245 Pac. 758 (1926). 731 Allen v. Roseberg, 70 Wash. 422,126 Pac. 900 (1912). Washington legislation enacted in 1967 provides that "No rights to the use of surface or ground waters of the state affecting either appropriated or unappropriated waters thereof may be acquired by prescription or adverse use." Wash. Rev. Code § 90.14.220 (Supp. 1970). niSpargur v. Heard, 90 Cal. 221, 230, 27 Pac. 198 (1891). Although the trial court found that the appropriator had been damaged in only the nominal sum of $1, it; was held that under the circumstances he was entitled to an injunction without proof of damages. ™Smith v. Gaylord, 179 Cal. 106,108-109, 175 Pac. 449 (1918). The adverse parties had done this for a period much longer than that prescribed by the statute of limitations. The fact that a prescriptive right both as to the ditch and to the waters flowing therein might thus be acquired was not seriously disputed by the owners of the invaded land, their contention being reduced to the question of sufficiency of the evidence. |