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Show 420 LOSS OF WATER RIGHTS IN WATERCOURSES However, it is only material changes in the nature or extent of the servitude that are so precluded.856 Hence the enlargement of a dam does not defeat the right to an easement by prescription if there is no evidence that the burden on the servient tenement was increased by the change in the dam, that any larger area was flooded, or that the use was changed.8S7 In a 1909 case, the Kansas Supreme Court said, the prescriptive right "does not depend upon the use to which a dam is put, and the riparian owners can make no complaint of a change in that respect, unless of course it is one which results in an increased obstruction to the flow of the stream, which is not found to be the case here."858 It is a well recognized rule that an express or implied grant of an easement carries with it certain secondary easements essential to its enjoyment, such as the right to make repairs, renewals, and replacements. Such incidental easements may be exercised so long as the holder uses reasonable care and does not increase the burden on or go beyond the boundaries of the servient tenement, or make any material changes therein.859 For example, it was held in Utah that an irrigation company which held a prescriptive easement for its ditch across defendants' land was entitled to go upon such land for the purpose of waterproofing its ditch, and still retain its easement, notwithstanding the fact that this improvement would cut off the benefit to defendants of having their shrubbery nurtured by seepage from the ditch, provided that the work was done in a reasonable manner. The supreme court believed that the servient owners had not shown the method proposed to be unreasonable, and held that they be restrained from interfering with prosecution and completion of the waterproofing.860 Rights to the use of water.- (1) General. Where the use of water is concerned, other considerations apply. The land of the party whose water right is divested by prescription is injured by the taking away of the water for use on the adverse party's land, but it may or may not be further injured by a subsequent change in the manner of exercising the prescriptive right. And so it is held that a person entitled to the use of water by prescription is not bound to use the water in exactly the same manner or to continue the same precise application of the water as was exercised during the time when the right was being acquired, provided the altered use does not impose an added burden on the servient tenement.861 iS6Ward v. Monrovia, 16 Cal. (2d) 815, 821, 108 Pac. (2d) 425 (1940);Burris v. People's Ditch Co., 104 Cal. 248, 252, 37 Pac. 922 (1894). ^Chapman v. Sky L 'Onda Mutual Water Co., 69 Cal. App. (2d) 667, 681, 159 Pac. (2d) 988(1945). 858 Whitehair v. Brown, 80 Kans. 297, 300, 102 Pac. 783 (1909). 859 Ward v. Monrovia, 16 Cal. (2d) 815, 821-822, 108 Pac. (2d) 425 (1940). i60Big Cottonwood Tanner Ditch Co. v.Moyle, 109 Utah 213, 229-241, 174 Pac. (2d) 148 (1946). *6lDe la Cuesta v. Bazzi, 47 Cal. App. (2d) 661, 671, 118 Pac. (2d) 909 (1941). |