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Show CALIFORNIA 147 tention and action to abandon are required.165 Appropriative rights may be lost by abandonment,166 but riparian rights are not subject to loss by abandonment.167 Unlike statutory forfeiture, there is no time element in abandon- ment. Abandonment is a question of fact to be determined by the trier of fact168 with the burden of proof on the party asserting the abandonment.169 C. ADVERSE USE (PRESCRIPTION) Riparian170 and appropriative171 rights can be lost by prescrip- tive use, although Pueblo m and governmental rights173 are exempt from this doctrine. The water right is lost upon expiration of the statutory period when prescriptive title vests.174 The statutory period is based on California code of civil procedure, section 318, which bars an action to recover real property unless the plaintiff or his predecessor has seized or possessed the property within 5 years before the commence- ment of the action. Thus, where there is actual, open, and notorious use on the part of the adverse claimant for 5 years, he may obtain prescriptive title to the right.175 The use must also be made with the knowledge and acquiscence of the party against whom the adverse claim is asserted, but knowledge may be presumed from the cir- cumstances, including visible and notorious possession.176 The adverse claim is subject to the limitation of beneficial use.177 and the right is limited to the use which conferred the title.178 d. estoppel Courts have used the equitable doctrine of estoppel to deny water rights where claimants have relied on the wrongful conduct of the holder of the original right.179 Mere silence or inaction by the holder may result in estoppel only where the circumstances have made it his duty to speak.180 The doctrine applies to all types of water rights except for gov- ernmental water rights.181 In practice, estoppel applies only to the water used by the claimant asserting the estoppel defense, where such use reduces the water available to the party estopped.182 itzUtt v. Frey, 106 C. 392, 397-398, 39 P. 807 (1895). "a Wood v. Etiwanda Water Co. 147 C. 228, 233, 234, 81 p. 512 (1905). 187 Parker v. Swett, 188 C. 474, 205 P. 1065 (1922) ; Walker v. Lillingston, 137 C. 401, 403-404, 70 P. 282 (1902). iea Utt v. Frey, supra, note 1. toward v. Monrovia, 16 C. 2d 815, 820-821 108 P. 2d 425 (1940). uopeaoody v. Vallejo, 2 C. 2d 351, 374, 40 P. 2d 486 (1935). "i Pasadena v. Alhambra, 33 C. 2d 908, 927, 207 P. 2d 17 (1949). 172 Los Angeles v. Olendale, supra, note 5, p. 27, at 79. iraln San Diego V. Ouyamaca Water Co., 209 C. 105, 135, 287 P. 475 (1930), the State supreme court held that water rights held by municipal corporations could not be lost by prescription. ™Alta Land and Water Go. v. Hancock, 85 C. 219, 223, 228-230, 24 P. 645 (1890). "speofc v. Howard, 73 Cal. app. 2d 308, 325, 167 P. 2d 753 (1946). ™ Hails v. Martz, 28 C. 2d 775, 778, 172 P. 2d 52 (1946). wPabst v. Finmand, 190 C. 124, 133, 135, 211 P. 11 (1922). "8 Moore v. Calif.-Ore. Power Co., 22 C. 2d 725, 740, 140 P. 2d 798 (1943). ™Biddle Bogs v. Merced Min. Co., 14 C. 279, 367-368 (1859). ™Lux v. Haggin, 69 C. 255, 278-279, 4 P. 919 (1884), 10 P. 674 (1886). ^¦San Diego v. Ouyamaca Water Co., 209 C. 105, 137, 287 P. 475 (1930). 182 See Rogers and Nichols, p. 519. 499-242-73------11 |