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Show 408 LOSS OF WATER RIGHTS IN WATERCOURSES In a 1961 New Mexico case, the supreme court included in its opinion the following statement: "The trial court did not determine, nor do we, whether a water right is subject to being acquired by prescription. A determination of that legal question, likewise, requires the presence of all persons who would be affected by the question being resolved."793 (2) Oregon. Various decisions of the Oregon Supreme Court concerning the acquisition of water rights by prescription were rendered prior to the adoption of the water appropriation statute of 1909.794 Subsequently, the supreme court held that a prescriptive water right had been acquired against the City of Baker, the priorities in controversy having been decreed in 1918, but apparently dating back into the 19th century.795 In Tudor v. Jaca, decided in the 1940's, the Oregon Supreme Court said: "It is a debatable question, under the water code, whether, subsequent to 1909, an appropriation of water can be initiated by adverse use, or in any other manner than under the statutory procedure. * * * Such procedure is declared to be exclusive. * * * It is unnecessary for us to discuss this question, however."796 Not long afterward the supreme court pointed out that in Tudor v. Jaca "our dictum referred only to the initiation of an appropriation by adverse use," whereas in the instant case the appropriation was initiated by diversion and use under the old law prior to adoption of the 1909 code.797 Further questioning in Oregon occurred in 1957 in the following language of the supreme court:798 We have grave doubts as to whether it is possible for a person to acquire title to water by prescription under the Water Code and after a blanket adjudication of water rights by the courts.799 The intent of the statute appears to be hostile to the acquisition of rights except as prescribed in the statute. We find persuasive reasoning and authorities which are contrary to that part of the decision in the Ebell case which recognized the right to acquire water rights by prescription. "Limitation did not begin to run from the date water was used by defendants; but from the date their use deprived plaintiffs of their appropriated water, which was in 1945 * * *. "Defendants acquired no right to the use of plaintiffs' appropriated water by limitation or prescription." 793State v. W. S. Ranch Co., 69 N. Mex. 169, 364 Pac. (2d) 1036, 1040 (1961). 794 See, e.g., Davis v. Chamberlain, 51 Oreg. 304, 316-317, 98 Pac. 154 (1908); Gardner v. Wright, 49 Oreg. 609, 628, 91 Pac. 286 (1907). 195Ebell v. Baker, 137 Oreg. 427, 438-440, 299 Pac. 313 (1931). n9eTudor v. Jaca, 178 Oreg. 126, 152, 164 Pac. (2d) 680 (1945), 165 Pac. (2d) 770 (1946). wfitaub v. Jensen, 180 Oreg. 682, 687, 178 Pac. (2d) 931 (1947). ™*Calderwood v. Young, 212 Oreg. 197, 207-208, 315 Pac. (2d) 561 (1957), rehearing denied, 319 Pac. (2d) 184 (1957). 799 In the latter regard, see "Character and Quality of the Prescriptive Title-Relation to Statutory Adjudication," infra. |