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Show PRESCRIPTION 411 more on that point. The only possible question is as to prescription since that time, if a prescriptive title may be obtained at all in this state, which we refused to decide.810 Relation to Necessity fora Valid Statutory Appropriation It is an elemental principle of western water rights law that one who obtains a permit and perfects a right to appropriate water holds a right that is junior to all previously existing appropriative rights on the same stream and, in a dual system State, may be inferior to existing riparian rights. If for the prescriptive period (in a State in which it is possible to acquire title to water rights by adverse possession and use) this junior appropriator diverts the entire quantity of water to which his right related and thereby precludes senior downstream appropriators and riparian owners from exercising their own rights when they need to do so, under all the circumstances necessary to establish prescriptive title, he renders his claim to the use of this full quantity immune to attack by those whose right he has invaded. In addition to having a valid appropriative right, subject to prior and superior downstream rights, he now has a prescriptive right which is prior and superior to them. The practical effect is to enhance materially his validly acquired appropriative right. As discussed under the immediately preceding subtitles, the question has arisen in certain States as to whether a prescriptive claimant must follow the prevailing and purportedly exclusive appropriative rights law, as well as the law of adverse possession and use, or whether-unless halted by court order-he may simply make his adverse diversion of water and continue diverting it throughout the prescriptive period, carefully taking all the steps requisite to the fulfillment of a prescriptive right. In some States, as noted above, the legislatures forbid the acquisition of water rights by prescription; in some others the possibility has been judicially questioned. In these situations it is not prescription per se that is objected to so much as acquisition of rights to the use of water without appropriating it under the orderly statutory procedure-which purports to be exclusive-in which the first and indispensable step ordinarily is the filing of an application to make the appropriation, and in which everything done in the process of acquiring the right is under the supervision of a central State administrative agency and is a matter of official record in its office. The riparian doctrine has been one of the major parts of California water rights law and, as stated earlier under "Basis of the Prescriptive Right-Effect 810 In a subsequent case, without specifically deciding this issue, the Wyoming Supreme Court said: "Some more or less casual reference has been made in both the pleadings and the evidence to the use of irrigation water by the plaintiffs. However, no claim was based on this fact; and even though it had been, use of the water would not, standing alone, give them any rights to title by prescription. See Campbell v. Wyoming Development Company, 55 Wyo. 347, 100P.2d 124,102 P.2d 745 [1940]." Hunziker v. Knowlton, 322 Pac. (2d) 141, 145, rehearing denied, 324 Pac. (2d) 266 (Wyo. 1958). |