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Show 418 LOSS OF WATER RIGHTS IN WATERCOURSES seasonal storage of water is * * * not within the rights of the riparian owner and is adverse to the rights of the lower owner on the stream."845 But in a few instances, the view has been expressed that such improper riparian use on riparian land is appropriative as well as prescriptive, thus: "Seasonal storage of water for power purposes is not a proper riparian use, but constitutes an appropriation, so that if continued for the time prescribed by the statute of limitations, it will ripen into a prescriptive right."846 Relation to Statutory Adjudication A fundamental facet of this relationship has been declared in Colorado and Oregon. In a Colorado case, in which the priorities of the appropriators had been previously established in a statutory adjudication proceeding, according to the supreme court, these priorities thereby became res judicata. The court said:847 It was incumbent on plaintiff also to appear at such proceeding and establish its date of priority out of Sand Creek. Having failed so to do, the priorities as decreed became final, and plaintiff lost its relative right as to those so decreed * * * . True, * * * as plaintiff urges, a water right may be acquired by prescription in proper case, but where, as here, the water rights on a stream are decreed, prescriptive right must result from adverse use of an already exist- ing and decreed priority, not from an independent and undecreed claim against all other users from the stream.848 And the Oregon Supreme Court said:849 "We think it clear that the general adjudication of the rights of the parties clearly establishes their rights as of the date of the decree. If adverse possession can upset the decree it must be by virtue of events occurring subsequent to the decree." After making the M*Moore v. California Oreg. Power Co., 22 Cal. (2d) 725, 734,140 Pac. (2d) 798 (1943). "'Colorado Power Co. v. Pacific Gas & Elec. Co., 218 Cal. 559, 564, 24 Pac. (2d) 495 (1933). In another case the court said, "[T]o what extent may such owner detain, store or impound the waters before the right ceases to be a riparian one and becomes an adverse or appropriative right which may ripen into a prescriptive right, is the question?" Senaca Consol. Gold Mines Co. v. Great Western Power Co., 209 Cal. 206, 215, 287 Pac. 93 (1930). Seasonal storage was held to be adverse to the downstream riparian owners. M1Granby Ditch & Res. Co. v.Hallenbeck, 127 Colo. 236, 242, 255 Pac. (2d) 965 (1953). 848In earlier Colorado cases, it was likewise indicated that in exceptional circumstances a prescriptive right to the use of water might be established, but not in derogation of the statutory provisions relating to water adjudications by one who had full opportunity to previously assert his right under such proceedings. Bieser v. Stoddard, 73 Colo. 554, 558-559, 216 Pac. 707 (1923); German Ditch & Res. Co. v. Platte Valley In. Co., 67 Colo. 390, 392-394, 178 Pac. 896 (1919). *49Calderwood v. Young, 212 Oreg. 197, 207, 315 Pac. (2d) 561 (1957), rehearing denied, 319 Pac. (2d) 184 (1957). See Ebell v. Baker, 137 Oreg. 427, 436-438, 299 Pac. 313 (1931). |
