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Show SURFACE WATERS 43 (3) ADVERSE USE Acquisition of title to land by adverse use in the Western States is practically identical to that in the Eastern States, as explained above. Where water rights are appurtenant to the land, the water rights will pass with title to the land when title is transferred by ad- verse possession, but water rights which are not appurtenant to the land will not be so transferred. The most common application of the doctrine of adverse use with respect to water rights in the West, whether such rights are appur- tenant or not, has related to a physical possession and use of the water which another was entitled to use, without a concurrent possession of the land of the other. This most frequently arose when an upstream water user diverted more water than he was entitled to divert, and thus took water belonging to a lower user. If this con- tinued for the relevant statutory period without the consent of, or interruption by, the lower user, then the courts in a number of the Western States recognized title to the water right in the upper user by virtue of adverse use. One who acquired a water right by adverse possession also acquired the same priority date held by the person whose right was adversed. It is important to observe that the courts thus viewed a water right as a species of property akin to real property, and applied the stat- utory period for acquiring title to land by adverse use, rather than the longer statutory period required to obtain prescriptive easements. Thus, there was no specific statutory basis for loss of water rights by adverse possession when there was no concurrent possession of land. The courts simply applied the statutes relating to acquisition of title to land by adverse possession to the acquisition of water rights by adverse possession. There were many difficulties which arose from the practical aspects of recognizing title by adverse use of water rights, and the doctrine was unpopular. One problem was the difficulty which an appropriator had in determining whether his water right was being adversely used. In some instances, the adverse user might be divert- ing the water many miles upstream from the point of diversion of the person who was entitled to use the water; and it was highly im- practical for each water user to inspect all upstream uses to make sure that each such use was in accordance with the respective right, and to thus assure that no one was adversely using his water. This would require every appropriator to be a river commissioner to pro- tect his own right. As a practical matter, most water users assumed that the water in the stream as it passed their points of diversion was all of the water that nature had supplied, less legitimate upstream diver- sions and uses; and as a matter of practical fact, in most instances there was no reasonable notice to downstream users that their rights were being adversely used. This is obviously distinguishable from adverse possession of land, where any owner of land can readily as- certain whether another is adversely occupying and using it. As a result of problems such as these, most States enacted statutes expressly rejecting the doctrine of title by adverse use where |