said that a right to the artificial flow of water through a water-course may be acquired by prescription. And this seems also to be the doctrine of the Pacific states.2]

§ 133. Loss of riparian rights by adverse user and estoppel.

[In the preceding section we saw that while a riparian owner, merely as such, has no right to the exclusive use of the stream, he may acquire such a right by grant or prescription. It now remains to be stated that the converse of this rule is equally of force; that is, that the rights attaching to the estate of a riparian owner, in virtue of such ownership, may be lost or forfeited by the exclusive adverse use of the stream by another person, continued for a sufficient length of time, or on the grounds of equitable estoppel. Thus, an adverse, exclusive, and uninterrupted use and enjoyment by one person and those under whom he claims, of all the waters of a stream, taken therefrom by means of a ditch, and conveyed to certain mining grounds for mining purposes, for a period beyond that of the statute of limitations prescribing the time within which entry shall be made upon real property, will bar the owner of the land through which the stream runs of his riparian rights.3

But here it is necessary to distinguish between the acquisition of water rights by prescription and the statutory appropriation of such rights under the system explained in the earlier parts of this work. In those states where the

Murchie v. Gates, 78 Me. 304, 4 Atl. Rep. 698; Dority v. Dunning, 78 Me. 681, 6 Atl. Rep. 6.

2 Trambley v. Luterman, (N. Mex.) 27 Pac. Rep. 312.

3 Huston v. Bybee, 17 Oreg. 140, 20 Pac. Rep. 51. See, also, Faull v. Cooke, 19 Oreg. 455, 26 Pac. Rep. 662; Heilbron v. Kings River

& F. C. Co., 76 Cal. 11. 17 Pac. Rep. 933: Last Chance Water-Ditch Co. v. Heilbron, 86 Cal. 1. 26 Pac. Rep. 523; Spargur v. Heard, 90 Cal. 221, 27 Pac. Rep. 198; Chauvet v. Hill, 93 Cal. 407, 28 Pac. Rep. 1066; Ball v. Kehl, 95 Cal. 606, 30 Pac. Rep. 780.

rights of riparian proprietors, as such, are recognized and protected, no appropriation can confer upon the appropriator any rights which would be in derogation of riparian rights on the same stream already vested. In such a case, therefore, the technical appropriation of the water is of no avail. At the same time, while it would be an unlawful act, in the sense of being actionable, still, if allowed to pass by the riparian owner, it may incidentally serve a useful purpose, viz. that of giving notice. But if the appropriator ultimately acquires rights adverse to those of the riparian proprietor, it will not be in consequence of the appropriation, but in consequence of his adverse user during the statutory period. Upon this point the supreme court of California has spoken as follows: "The term 'appropriation,' as applied to the acquirement of the right to the use of water, has in this state a statutory technical meaning; and the simple act of appropriation under the statute will not of itself defeat or extinguish any prior right. Actual and uninterrupted user, however, with or without the statutory appropriation, if adverse, for a useful purpose, and under claim of right, continued for the period prescribed by the statute of limitations, gives a prescriptive right which will extinguish the rights of the riparian proprietor. Statutory appropriation, therefore, is not necessary to prescription, but it gives to one who seeks to acquire a right by prescription this advantage, that it gives to prior claimants notice that his user is adverse and under claim of right, and sets the statute in motion against such prior claimant."

The adverse user, however, must be continued without interference on the part of the riparian owner. For example, repeated and long-continued incursions on the ri parian owner's land by the appropriator, for the purpose of diverting the water into the latter's ditch, will give him no

1 Alta L. & W. Co. v. Hancock, 85 Cal. 219, 24 Pac. Rep. 645.

prescriptive rights, where the riparian owner restored the water to its natural channel as often as he discovered the diversion.1 Also it is necessary that the adverse use should be continuous. But it is held that the adverse user of an irrigating ditch, through the lands of another, only during the cropping season, the ditch not being needed at other times, constitutes a continuous adverse user, as the omission to use when not needed does not break the continuity of the user.2 A "squatter" who enters upon, occupies, and cultivates part of the riparian land of another, claiming adversely in the belief that it is government land, can gain no title to the use of the waters of the stream by diverting and using them for purposes of irrigating such land, since such use inures to the benefit of the true owner, and is not adverse to him; and it can make no difference that

1 Last Chance Water-Ditch Co. v. Heilbron, 86 Cal. 1, 26 Pac. Rep. 523.

2 Hesperia L. & W. Co. v. Rogers, 83 Cal. 10, 23 Pac. Rep. 196. In this case, the court observed: "The correct rule as to continuity of user to give a presumptive right to an easement, and what shall constitute such continuity, can be stated only with reference to the nature and character of the right claimed. The right is not abandoned to the use of a ditch to convey water for purposes of irrigation because water does not flow in it every day in the year. The party claimant does not need the ditch every day in the year, and the law does not require him to constitute continuity of use to use the water when he does not need it. If he has used the ditch at such times as he needed it, it is regarded by the law as a continu

ous use. If a right of way over another's land has been used for more than five years, it is not necessary to make good such use that the claimant has used it every day. He uses it every day, or once in every week, or twice a month, as his needs require. He is not required to go over it when he does not need it, to make his use of the way continuous. The claimant is required to make such reasonable use of the way as his needs require. So it is of the ditch. If, whenever the claimant needs it, from time to time, he makes use of it, this is a continuous use. omission to use when not needed does not disprove a continuity of use, shown by using it when needed. Bodfish v. Bodfish, 105 Mass. 319. Neither such intermission nor omission breaks the continuity."

An

the land irrigated does not border on the stream, since such land is not segregated in title by the occupancy, but remains part of the entire riparian tract.1 And no prescriptive right, as against the uses to which an upper riparian proprietor may employ the water of the stream, can be acquired by the lower proprietor by merely diverting and using the water below.2

The riparian owner may also be precluded, in certain cases, on the ground of estoppel, from insisting upon his riparian rights. Thus, in a case in Oregon, it appeared that the defendant had diverted the water of a stream under a claim of title, and he believed, and had reason to believe, that the claim was well founded, and the plaintiff, the riparian owner, stood by without asserting or making known his claim, while the defendant was expending large sums of money and making extensive improvements under an honest and reasonable belief that he had the right to make such diversion, and without which right his expenditures would prove a total loss. And it was held that the plaintiff should not be permitted to set up his riparian interest.3 But the fact that riparian owners made no objection to the use of water by an appropriator during seasons of abundance, when it naturally flowed down the river, gives the appropriator no prescriptive right to change the course of the flow in seasons of scarcity for the purpose of continuing the supply. And it has been held that the rights of riparian owners are not lost by mere non-user of them.5

1 Alta L. & W. Co. v. Hancock, 85 Cal. 219, 24 Pac. Rep. 645.

2 Mud Creek Irr. Co. v. Vivian, 74 Tex. 170, 11 S. W. Rep. 1078.

3 Curtis v. La Grande Water Co., 20 Ore. 34, 25 Pac. Rep. 378. See, also, Dalton v. Rentaria, (Ariz.) 15 Pac. Rep. 37.

Last Chance Water-Ditch Co. v. Heilbron, 86 Cal. 1, 26 Pac. Rep. 523.

5 Whitney v. Wheeler Cotton Mills, 151 Mass. 396, 24 N. E. Rep. 774, citing Johnson v. Jordan, 2 Metc. (Mass.) 234.

II. USES TO WHICH THE WATER MAY BE PUT.

§ 134. General statement of riparian rights-Van

Sickle v. Haines.

It thus appearing that the title of the Code concerning water rights has no application to nor operation upon the riparian rights of private riparian proprietors who hold the title to tracts of land on the banks of natural running streams in this state; that those rights are left existing as they have been declared by judicial decisions made before and since the adoption of the Code; and that those rights have thus been declared by judicial decisions to be substantially the same as the rights created, recognized, regulated, and protected by the common-law doctrines relating to the subject, we are now in a position to inquire, with more of detail, what are the nature, extent, and limits of the rights held by private riparian proprietors in California; what uses of the water of streams do they confer, permit, or forbid; with special attention to the inquiry whether they permit the use of water for purposes of irrigation, and, if so, to what extent and under what limitations. As a preliminary to this proposed examination, I shall quote at some length from a decision made by the supreme court of Nevada, which covers all of the questions. The same physical conditions affecting the use of water exist in both states, and in both the common-law doctrines concerning the rights of private riparian proprietors are recognized as substantially controlling. These facts alone would recommend the decision to the attention of the courts and profession of California; but the decision itself is so important, and the opinion of Chief Justice Lewis is so able, learned, and exhaustive, that no excuse is needed for the long extracts which I have made. If the common-law doctrines still determine and regulate the rights of private riparian proprietors in our own LAW W. R.-17

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