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Show PRESCRIPTION 393 (4) In Hawaii, it was held that while the statute of limitations cannot be invoked against the State (then Territory), nevertheless where sufficient facts are shown, the common law presumption of a lost grant may be invoked either against the State or in favor of it.704 The United States.- Adverse use will not mature into a title as against the United States.705 As to public lands of the United States, Congress alone can deal with the title, and no State statute of limitation can defeat the Federal Government's title.706 Proof that the land was owned by the Government at any time during the prescriptive period is usually a sufficient defense to a claim of right by adverse use. "One may not adverse the sovereign."707 Appropriator.-In many Western States, prescriptive titles have been acquired by appropriators, and appropriative titles likewise have been lost by prescription. That is to say, appropriative titles have become superior to those of prior appropriators or riparian proprietors by reason of adverse use against them under all the circumstances necessary to establish prescription.708 However, as is indicated later under the subtopic "Possibility of Establishing Prescriptive Water Right Negated or Questioned," courts in some states have indicated doubts as to the soundness of this proposition under the prevailing statutory appropriation law, and some legislatures have declared that no right to the use of water, either appropriated or unappropriated, can now be acquired by adverse use or adverse possession. Riparian proprietor.-In the relatively few Western States in which litigation concerning the effect of prescription upon riparian rights has reached the high courts, the courts have generally favored the applicability of the principles of prescription. In some States, the possibility of establishing a prescriptive water right as against riparian as well as other water rights appears to have been negated or questioned by legislation or one or more reported court decisions. See the later discussion under "Possibility of Establishing Prescriptive Water Right Negated or Questioned." Relative Locations on Stream Channel Importance contrasted with appropriative priorities.-(\) Relative locations of water diversion facilities on a stream channel have no bearing on relative priorities of appropriative rights to divert water from the stream. As pointed out in chapter 7 under "Methods of Appropriating Water of Watercourses-Priority Nacogdoches County, 188 S.W. (2d) 237, 238 (Tex. Civ. App. 1945). This principle is so well established it is now regarded as elementary. Humble Oil & Refining Co. v. State, 162 S.W. (2d) 119, 134 (Tex. Civ. App. 1942, error refused.) 704In re Title of Kioloku, 25 Haw. 357 (1920), affirmed, Territory of Hawaii v. Hutchin- son Sugar Plantation, 272 Fed. 856 (9th Cir. 1921). See Hutchins, W. A., "The Hawai- ian System of Water Rights" 117-118 (1946). 1OiSmith v. Hawkins, 110 Cal. 122, 126, 42 Pac. 453 (1895). 706 Vansickle v. Haines, 7 Nev. 249, 256, 284 (1872). 701Cassity v. Castagno, 10 Utah (2d) 16,18, 347 Pac. (2d) 834 (1959). 70eAllen v. Roseberg, 70 Wash, 422, 426, 126 Pac. 900 (1912). |