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

not extend, however, to suits brought against prescriptive users by
third parties. Montecito Valley, page 593. Furthermore, a suit that has
been dismissed or abandoned does not interrupt the running of the
statute. Yorba v. Anaheim Union Water Co. (1953) 41 Cal.2d 265, 270.
Seasonal. intermittent, or partial use is considered continuous as
long as the water is used when it is necessary, but the right acquired
is limited by the extent and duration of the use. For instance, a diver-
sion of 100 acre-feet of water every summer for five years can result
in a prescriptive right to that quantity during those months only.
Under claim of right Finally, the adverse use must be under claim
of right or, as it is sometimes referred to, under color of title. To es-
tablish this element, prescriptive users must show that they claimed
the water as their own and that the original owner was aware of this
claim and failed to act within the statutory period. A claim of pre scrip-
tive right asserted in good faith by a user who diverted water under
the mistaken belief that he or she had title to it does not necessarily
lack adversity and may ripen into a prescriptive right. Wood v. David-
son (1944) 62 CalApp.2d 885, 888. A user who renounces any right
to the use of the water in the future will not be allowed to later assert
a prescriptive title over the water. An adverse user may establish claim
of right in several ways. The user may post notice at the point of di-
version, informing the original owner and any other potential claim-
ants of his or her interest in the water. The user may also be required
to pay taxes on the water, to the extent that these taxes have been as-
sessed separately from the land. Above all, the user must act in such
a way as to give notice to the original owner that the diversion and use
are adverse to the original owner's claim and under claim of right.

Limitations on the Right Several limitations on the acquisition of
prescriptive rights have already been discussed. One cannot pre-
scribe against the state, which holds public waters in trust for the
people of the state. Prescriptive rights may be lost by nonuse over
five years (forfeiture) and may be abandoned. Abandonment can
occur, for example, when the purpose for which the water was
taken has been accomplished and the prescriptive users have dis-
persed. Once water has been abandoned, the rights to its use are
lost immediately. In contrast, loss by forfeiture does not occur until
after a five-year period of nonuse and a public hearing declaring the
forfeiture. As with all water rights, prescriptive rights give title only
to those waters which can be put to reasonable and beneficial use.
Finally, there is uncertainty about the prescriptive claims of
users who divert or store surface waters without a state permit and

62 CALIFORNIA WATER