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Show 44 SURFACE WATERS it had been judicially created, and as it related to acquiring title to water rights alone as distinguished from acquiring title to land and thereby acquiring title to water rights appurtenant to it. Therefore, it must be remembered that even in those States which have clearly and expressly rejected the doctrine of title to water rights by ad- verse use, it is still possible to obtain title to both land and appurte- nant water rights by satisfying the statutory conditions for obtain- ing title to land by adverse possession. Some problems still remain with respect to title to water rights by adverse use, even where legislation has expressly rejected that doctrine. For one thing, water rights acquired by adverse use prior to the effective date of the statute remain valid, even though in most instances they will not appear anywhere on water records. These rights sometimes are established of record as a result of court action where decrees validate the adverse use right. Such an action could be commenced today, even though the adverse use doctrine might have been rejected by statute 20 years ago, providing that the basis for the adverse use claim arose prior to the effective date of the statute. If, for example, the statutory period for adverse use was 7 years, and the adverse use commenced in 1920, then the adverse use right matured and was perfected in 1927; and if the doctrine of adverse use was rejected by legislation in 1930, an action could be filed in 1973 to confirm the validity of the adverse use right. Problems such as these frequently arise in general adjudication procedures, when the hydrographic surveys conducted by the State engineer reveal many uses which are not of record, and one category of such use may be the old adverse use rights. It is also important to remember that even though the doctrine of adverse use is now rather uniformly rejected, present uses of water in excess of the amount authorized under a water right, which de- prive a downstream user of water to which he is entitled, can cause a downstream user to lose his water right. The loss arises not by virtue of the doctrine of adverse use, of course, but by virtue of the doctrine of forfeiture, as discussed above. And it might be noted in passing that, even though unavailability of water is normally a defense to forfeiture through nonuse, the mere fact that water is unavailable because an upstream user has unlaw- fully diverted it to his own use, is not a good defense in most cases, and a forfeiture will occur. The upstream user who unlawfully di- verted the water would receive no right, title, or interest in the water right forfeited (where adverse use is no longer recognized), and that water would be utilized to satisfy junior users/in the order of their priority, as discussed above. (4) PRESCRIPTION Prescriptive rights may be acquired for water-related uses in the West in much the same way as they can be acquired in the East. It is important to note that actual water rights cannot be acquired by prescription, since rejection of the adverse use doctrine eliminates acquiring either prescriptive easements or title to water rights by adverse use. But prescriptive rights may be acquired in land through |
