OCR Text |
Show PRESCRIPTION 425 In an Oregon case, the use of water by upstream appropriators during the months of July and August of each year throughout the statutory period of limitation, adversely and under a claim of right, was held to have ripened into prescriptive rights against a downstrean mill that had shut down during that period of months each year, the prescriptive rights extending to the use of the water during these 2 months only. The issue, which the supreme court decided in the negative, was whether the mill owner could lawfully sell a part of its appropriation for use above the diversions of the appropriative-prescriptive users during the 2 months of milling inactivity each year.885 Rotation.- The time of use of water under a prescriptive claim would be involved in the alteration of or complete departure from a rotation system under which water had been distributed to holders of established rights, or vice versa. In one of the earliest Hawaiian water rights decisions, it was said that to change the system by which water was originally distributed-that is, an allotment by time-"is to change the water rights themselves."886 A change made adversely, then, would be an infringement of the rights of others who depended on the system, and it undoubtedly would ripen into a right if all of the elements of prescription were satisfied. The right to use water by day, as against others who formerly enjoyed use both by day and by night, was recognized in Hawaii as having been acquired by prescription.887 This was the exact opposite of a prescriptive right to deviate from an established rotation system. It was, in effect, the conversion by prescription of rights to continuous flow of water into rights by rotation, that is, alternate day and night rights. It follows that a right to a change in the time of use of water may be acquired by prescription without disturbing in any way the actual quantity of water to which the right attaches. If in a given case the net use is the same under a system of continuous flow as under a system of rotation, the right to a given quantity of water would not be affected by a change from one system to the other. It so happens that the net use of water for irrigation under the continuous delivery method often proves to be greater than the net use on the same lands under rotation.888 In such case, of course, one who effected by 885 In re North Powder River, 75 Oreg. 83, 98-100, 144 Pac. 485 (1914), 146 Pac. 475 (1915). 886 Wilfong v. Bailey, 3 Haw. 479, 480 (1873). M1Lonoaea v. Wailuku Sugar Co., 9 Haw. 651, 661-662 (1895). Kalo lands had had the right of use of water both by day and night. With the introduction of cane in the district, and the acquisition and use on cane lands of some of the old kalo water rights, a custom resulted of using water on the cane lands by day and on most of the kalo lands at night. The cane growers now claimed, and were decreed, a prescriptive right to their day use under these rights. 888Hutchins, W. A., "Delivery of Irrigation Water," U.S. Dept. Agr. Tech. Bui. 47, pp. 7-24 (1928). |