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Show 414 LOSS OF WATER RIGHTS IN WATERCOURSES Effectiveness of Title "A title by prescription is as effective as though evidenced by deed."819 Likewise, once having been acquired, a prescriptive right "gives the acquirer as good a title as a decree, and if acquired against a decreed right, a better title to that water, although it may require a new decree as to the particular adversed water to gain a good record of the title."820 The Supreme Court of Hawaii rendered two early decisions pertaining to the conditions of a prescriptive easement. In one of these, where parties had acquired by prescription a right to water flowing from springs into kalo patches and thence into an auwai (ditch), they had an easement in the auwai which could not be cut, narrowed, or otherwise interfered with to their injury.821 In another case in which plaintiff claimed a prescriptive right to divert water through a ditch located partly on defendant's land, the supreme court stated that the law "is well settled that when one has acquired, either by express grant or by prescription, an easement in the land of another, he may not substantially alter the mode of using it without the consent, express or implied, of the owner of the servient estate."822 This matter of conditions of prescriptive easement is more fully discussed later under "Measure of the Prescriptive Right." Passing of Title Prescriptive title, which is as good as that acquired by deed or otherwise, can be alienated only in the same way as such other title.823 As in the case of adverse possession of land824 for the statutory period, the prescriptive right to divert water not only bars a remedy, but extinguishes the right of the title holder of record and vests a title in the adverse holder.825 The Utah Supreme B19Te Selle v. Storey, 133 Mont. 1, 5, 319 Pac. (2d) 218 (1957); accord, Waianae Co. v. Kailwilei, 24 Haw. 1, 7 (1917); George v. Gist, 33 Ariz. 93, 98, 263 Pac. 10 (1928); Ebell v. Baker, 137 Oreg. 427, 440, 299 Pac. 313 (l93l);Pioneer Irr. Dist. v. Smith, 48 Idaho 734, 738, 285 Pac. 474 (1930); Dontanello v. Gust, 86 Wash. 268, 270-271, 150 Pac. 420 (1915); Strong v. Baldwin, 154 Cal. 150, 162, 97 Pac. 178 (1908). 820 Jackson v. Spanish Fork West Field In. Co., 119 Utah 19, 31, 223 Pac. (2d) 827 (1950). A prescriptive right usually is acquired as against only one or more water rights holders, leaving the rights of others unaffected. (See "Establishment of Prescriptive Title-Adverse Parties-Owners of rights affected," supra.) And prescriptive rights ordinarily do not run upstream. (See "Establishment of Prescriptive Title-Relative Locations on Stream Channel," supra.) Moreover, a prescriptive right often may be applicable to only a part of another's water right. (See "Measure of the Prescriptive Right-Part of Invaded Right Only," infra.) 821 Davis v.Afong, 5 Haw. 216, 224 (1884). *22Scharsch v. Kilauea Sugar Co., 13 Haw. 232, 236 (1901). 823 George v. Gist, 33 Ariz. 93, 98, 263 Pac. 10 (1928). 824 Waianae Co. v. Kaiwilei, 24 Haw. 1, 7 (1917). 825 Wutchumna Water Co. v. Ragle, 148 Cal. 759, 764, 84 Pac. 162 (1906); E. Clemens Horst Co. v. TarrMin. Co., 174 Cal. 430, 436-437, 163 Pac. 492 (1917). |
