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Show 424 LOSS OF WATER RIGHTS IN WATERCOURSES A right gained by prescription is always confined to the right exercised for the full period of time required by the statute of limitations; and one who enlarges the use within that time cannot, at the end of the period, claim the use as so enlarged within the period.879 Capacity of the diversion ditch necessarily limits the quantity of water to which a prescriptive right may be acquired, where the ditch in question is the only means of diverting the water.880 On the other hand, the fact that claimants' ditches were capable of carrying more water than they needed did not strengthen their claim of prescriptive title to all the waters of the stream as against another water user who had held prescriptive rights for a longer period of time.881 In California, it is necessary that the water be put to a reasonable beneficial use; that is, the amount actually used and reasonably necessary for the useful purpose to which the water has been applied. The necessary quantity is a question of fact in each case.882 "[T] here is no such thing as the acquirement by such an appropriator of a title by prescription" of any right to divert more water than is reasonably necessary for a useful or beneficial purpose, no matter how long a diversion in excess thereof has continued. His "color of title" in acquiring a prescriptive right against a riparian owner extends to no other water.883 Period of Use Portion of the time only.-The use of a certain quantity of water during only a portion of the time is not sufficient to give title to that quantity continuously. One cannot acquire a prescriptive right to use water during a particular period of the year-say, from November to April or May-in which he has not made use of the water. Nor, if he uses water during only 2 days of each month, can he claim the right during the intervals of nonuse.884 879Loosli v. Heseman, 66 Idaho 469, 481, 162 Pac. (2d) 393 (1945);Boynton v. Longley, 19 Nev. 69, 76, 6 Pac. 437 (1885). 8S0Edendale Land Co. v. Morgan, 93 Wash. 554, 557, 161 Pac. 360 (1916). 881 Weitensteiner v. Engdahl, 125 Wash. 106,116-117, 215 Pac. 378 (1923). ***Pabst\.Finmand, 190 Cal. 124, 133, 135, 211 Pac. 11 (1922). **3Cdlifornia Pastoral & Agric. Co. v. Madera Canal & In. Co., 167 Cal. 78, 85-86, 138 Pac. 718(1914). Cal. Const, art. XIV, § 3, adopted in 1928, provides inter alia that "The right to water or to the use of flow of water in or from any natural stream or water course in this State is and shall be limited to such water as shall be reasonably required for the beneficial use to be served, and such right does not and shall not extend to the waste or unreasonable use or unreasonable method of use or unreasonable method of diversion of water." BMPabst v. Finmand, 190 Cal. 124, 134, 211 Pac. 11 (1922); Witherill v. Brehm, 74 Cal. App. 286, 299, 240 Pac. 529 (1925); Bazet v. Nugget Bar Placers, 211 Cal. 607, 616, 296 Pac. 616 (1931); Northern Cal. Power Co., Consol. v. Flood, 186 Cal. 301, 304-306, 199 Pac. 315 (1921). |
