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40 SURFACE WATERS section examines only the ways in which water rights may be lost through the inattention or neglect of the owner of such rights. a. Rvparia/n Bights Riparian rights are not dependent upon actual impoundment, diversion or withdrawal of water, but continue in good standing even though the water remains in the stream undisturbed 'by any act of the riparian landowner. As a result, nonuse of water is not a basis for forfeiture or other loss of riparian water rights. However, it is possible for riparian water rights to be diminished or lost through certain conduct or acts on the part of the riparian owner, or others, as will be seen below. (1) ADVERSE USE Land titles may be lost when land is possessed by another, adversely, openly, notoriously, and continuously, for an uninter- rupted period of time prescribed by statute in the particular State. Since riparian water rights are part of the title to the real estate, one who acquires title to riparian land by adverse possession acquires also those riparian rights associated with the land. The various States prescribe different periods of time to satisfy the period of ad- verse possession and use, but the most common period is 7 years. The statutes ordinarily require a number of conditions beyond mere pos- session and use of the land, and these conditions sometimes include certain minimum improvements, such as fencing or cultivation, and sometimes require payment of property taxes. (2) PRESCRIPTIVE RIGHTS Prescriptive rights arise when one makes a certain use of the property of another, or when one uses his own property in such a way as to infringe upon the rights of another, and when these practices persist for a long enough period of time to ripen into an easement in favor of the party who conducts such activity, and against the party whose rights are infringed. These rights as easements are dis- tinguished from title to property, which is acquired through the acts of adverse possession mentioned above. Prescriptive rights, like title through adverse possession, require that the adverse use be open, hostile, uninterrupted, and continuous for the relevant period, most commonly 20 years, but shorter in several States. With respect to riparian water rights, the problems of prescription arise most commonly in two ways. The first relates to water use when an upstream riparian makes an unreasonable use of water in a manner inconsistent with and injurious, or poten- tially injurious, to a lower riparian owner. If the lower riparian owner does not complain about or interrupt the upstream use during the prescriptive period, then the upstream use ordinarily will ripen into a prescriptive right against the downstream riparian owner, so that he cannot thereafter complain that the upstream use is unreason- able, injurious, or otherwise illegal. The second common problem usually is associated with dams and other impoundments which encroach upon or overflow lands of an- |
