PUB00109

• Year: 1995
• Title: Califormia Water
• CWCB Section: Interstate & Federal
• Author: Arthur L. Littlewort
• Description: History, overview, and explanation of water rights and legislation of California
• Publications - Doc Type: Historical

has not used the water. Sibbett v. Babcock (1954) 124 Cal.App.2d
567,570-571.
The requirement that the original owner have notice of any
adverse claim has also been complicated by the appropriation pro-
visions of the Water Code. Original owners of surface water rights
may claim that the prescriptive user, in bypassing the Code's permit
requirements, is not acting under a claim of right and has failed to
give the owner proper notice of the adverse claim.
Adverse and hostile use. Prescriptive use begins with a trespass
or invasion of the prior rights of another. In order to establish the re-
quired level of adversity, the prescriptive use must be wrongful and
must injure the rights of the original owner, forming the grounds for
a suit against the use of water. A diversion of water is not adverse
if enough water exists in the watercourse to satisfy the needs of all
diverters. Pumping is not adverse if a surplus exists in a groundwater
basin. Because riparians and appropriators have a right only to that
quantity of water which can be put to reasonable and beneficial use,
any excess water is considered surplus and not subject to prescription.
Establishing adverse use, or an invasion of prior rights, does
not require injury based upon an immediate inability to obtain
water. Even though the original owner may have been able to obtain
all the water needed, that owner may be injured by a reduction in
"the long term sufficiency of the water supply." OCWD v. City of
Riverside, 173 Cal.App.2d 137, 212-14. The injury may occur from
"a gradual reducing of the total amount of stored water, the accu-
mulated effect of which, after a period of years, would be to render
the supply insufficient to meet the needs of rightful owners."
Pasadena v. Alhambra, 33 Cal.2d 908, 929. Irreparable damage,
hence adverse use, may be shown by whatever "makes the supply
less dependable, less satisfactory in its quality or pennanently more
expensive." OCWD, 173 Cal.App.2d 137, 216.
Continuous and uninterrupted use. The adverse use must be
continuous and uninterrupted for the five-year prescriptive period.
The statute of limitations on the use begins with the first adverse use
of the water. During this time, the use must be adverse and hostile
and exclusive of any other right. San Francisco Bank v. Langer (1941)
43 Cal.App.2d 263, 269. Sporadic interruptions which are immedi-
ately removed or secret interferences in the diversion do not break the
continuity of the use. Big Rock Mutual Water Co. v. Valyermo Ranch
Co. (1926) 78 Cal.App. 266, 272. The filing of a suit against a tres-
passer may stop the running of the statute of limitations. Alta Land &
Water Co. v. Hancock (1890) 85 Cal. 219, 227-228. This holding does

Prescription requires an invasion of the
prior rights of another.

Injury to another does not mean that he
or she cannot obtain the water needed.

Injury. and adverse use, may result from
water use that reduces the "long term suf-
ficiency of the water supply, .. or makes it
"less dependable. less satisfactory in its
quality or permanently more expensive. II

Chapter 2 Water Rights in California 61