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Show PRESCRIPTION 419 foregoing declaration, the Oregon court referred to the water appropriation act and stated its doubts as follows:850 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. 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. * * * It is not necessary to decide the question in this case and we therefore refrain from so doing.8S1 The relation of prescription to the necessity for a valid statutory appropriation has been considered earlier under "Establishment of Prescriptive Title-Relation to Necessity for a Valid Statutory Appropriation." Changes in Exercise of Prescriptive Right The prescriptive right is limited to the extent of the use that ripened into the right. (See "Measure of the Prescriptive Right," below.) It cannot be increased to a greater extent, or in such a way as to increase the burden upon the party whose title was divested.8S2 An additional prescriptive right would need to be perfected for this purpose. Easements in land for use of water. -Where the right to make use of another's land is involved, the prescriptive right must be exercised in a reasonable manner; and while the right to make necessary repairs is incident to the use of the property, the burden of the dominant tenement cannot be enlarged to the manifest injury of the servient tenement by any alteration in the mode of exercising the prescriptive right.853 Thus, a person who acquires a prescriptive right to use the land of another for a dam and ditch in a particular place has no right to change the site of those facilities.854 The right of prescription is no more subject to variation than one created by deed; hence the right to maintain a ditch acquired by prescription does not carry with it the right to enlarge the ditch, change its course materially, or make a new ditch over the servient property.855 850212Oreg. 207-208. 851 See "Establishment of Prescriptive Title-Possibility of Establishing Prescriptive Water Right Negated or Questioned-Questionings," supra. "2N6rth Fork Water Co. v. Edwards, 121 Cal. 662, 665-666, 54 Pac. 69 (1898). 8S3M *M Hannah v. Pogue, 23 Cal. (2d) 849, 854, 147 Pac. (2d) 572 (1944);Z)u«« v. Thomas, 69 Nebr. 683, 684, 96 N.W. 142 (1903). See Vestal v. Young, 147 Cal. 715, 717-718, 82 Pac. 381 (1905); Wanders v. Nelson, 98 Cal. App. (2d) 267, 270, 219 Pac. (2d) 852 (1950). SS5Babcock v. Gregg, 55 Mont. 317, 320, 178 Pac. 284 (1918). See Stalcup v. Cameron Ditch Co., 130 Mont. 294, 295-296, 300 Pac. (2d) 511 (1956). |
