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Show 410 LOSS OF WATER RIGHTS IN WATERCOURSES possibility of acquiring prescriptive rights as against riparian rights, it may be noted that in addition to the fact that this was mere dictum rather than a direct holding, the case has no writ history. That is, the Texas Supreme Court was not called upon to review it. This means that in the absence of supreme court approval, the appellate court's holdings and comments can have no standing as authority in opposition to anything that the supreme court may have held with respect to loss of riparian rights by prescription.805 In 1947, the San Antonio Court of Civil Appeals said:806 Appellants claim paramount rights to the use of the water of Las Moras Creek, acquired by prescription. An upper riparian proprietor may, by prescription, acquire the right to use the water of a running stream, in a special way and in excess of the right arising from ownership of his land, to the injury and detriment of lower riparian proprietors, and the time to perfect such a right by prescription is ten years. Martin v. Burr, 111 Tex. 57, 228 S.W. 543. [1921].807 (4) Wyoming. In a case decided in 1940, questions of prescriptive title to water rights inter alia were argued and decided. In its original opinion the supreme court stated:808 We do not mean to intimate, or seem to concur in the view, that a prescriptive title to water may be acquired in this state, particularly since 1890, when the legislature enacted a law requiring the initiation of all water rights to be pursuant to a permit from the State Engineer. We do not need to enter into that question in this case. See the case of Wyoming Hereford Ranch v. Hammond Packing Company, 33 Wyo. 14, 236 P. 764. And in its opinion on petition for rehearing, which was denied, the Wyoming Supreme Court stated:809 Counsel have again argued the question of prescription at length. That no prescriptive title was obtained up to the time of the adjudication of the Little Laramie in 1892 was so clearly pointed out in the original opinion that we need not say anything 80SIn a 1949 case, the Texas Supreme Court, without referring to the Freeland ox Martin cases, dealt with prescriptive rights to the bed of a navigable stream. Heard v. Texas, 146 Tex. 139, 141, 145-146, 204 S.W. (2d) 344 (1947). *06Stratton v. West, 201 S.W. (2d) 80, 80-81 (Tex. Civ. App. 1947). 807 Also see the discussion of Woody v. Durham, 267 S.W. (2d) 219, 221 (Tex. Civ. App. 1954), at notes 672-673 supra, in which the Forth Worth Court of Civil Appeals referred to Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 297 S.W. 225 (1927), discussed in note 801 supra, without referring to any other cases, in regard to the possibility of acquiring prescriptive water rights as against riparians. *08Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 395, 100 Pac. (2d) 124, 102 Pac. (2d) 745 (1940). 809 55 Wyo. at 413-414. |