Pabst v. Finmand - 190 Cal. 124, 211 P. 11 (1922)

Rule:

A right can be gained by prescription only by acts that operate as an invasion of the rights of the person against whom the right is sought and that afford a ground of action by such party against such claimant. A lower use, because it interferes in no way with the flow above, constitutes no invasion of the upper riparian owner's right and cannot, therefore, afford any basis for a prescriptive right. 

Facts:

This action was instituted by the plaintiffs, Charlie Lee Pabst and the Priors, against H. H. Finmand and N. H. Finmand and the Cambrons, to quiet title to the waters of Eagle Creek, in the county of Modoc, state of California. Eagle Creek, rising in the Warner Mountains, west of the lands of both plaintiffs and defendants, flows in a single channel until just before it reaches the land of the plaintiffs, Priors, and the defendant, N. H. Finmand. There it forks and the north branch flows across the northwest corner of N. H. Finmand's lands and across the Prior lands. The south branch flows across the south portion of N. H. Finmand's lands and thence on to and across the lands of plaintiff Pabst. The lands of the other defendant, H. H. Finmand, are not riparian to the creek. They lie to the west of the lands of the plaintiffs, Priors, and to the northwest of the lands of the plaintiff Pabst and the defendant N. H. Finmand, and are irrigated by means of two ditches, the "Gee" and the "Grider" ditches, which run from the main channel of Eagle Creek before it forks, northerly to the lands of H. H. Finmand. The trial court found that the lands of the defendant, N. H. Finmand, were riparian to Eagle Creek and that the defendant, N. H. Finmand, was entitled, as an appropriator, to a first right to 300 inches of the water of Eagle Creek, measured under a four-inch pressure, and that said defendant also had a prescriptive right to said quantity of water. The court found that the defendant, H. H. Finmand, was entitled to a first right of 200 inches of water from Eagle Creek through what is known as the "Gee" ditch, and a first right to 200 inches of water through what is known as the "Grider" ditch, both under a right by prior appropriation and by prescription. Judgment was accordingly rendered and entered in favor of the defendant, N. H. Finmand, for 300 miner's inches of water under a four-inch pressure; and in favor of H. H. Finmand for 400 miner's inches of water, under a four-inch pressure, for the irrigation of his lands through the "Gee" and "Grider" ditches. It is from this judgment that plaintiffs appealed.

Issue:

Was a prescriptive title acquired?

Answer:

No

Conclusion:

The court reversed the judgment and ordered a new trial. The court held that there was nothing to indicate to plaintiffs that the riparian landowners were exercising, or attempting to exercise, any more than their riparian rights. Accordingly, in the absence of any assertion of a hostile right to plaintiffs, no prescriptive title was acquired. However, the adverse use of the water by the nonriparian landowners was continued "openly and notoriously" for a period longer than five years, and the slightest use by nonriparian landowners being notice to plaintiffs that a hostile right was being asserted, a prescriptive right was acquired by such adverse use. Because there was no evidence of a continuous use, the finding that defendants had diverted and were entitled to 400 miner's inches without limitation as to the time of use, could not have been sustained.