Prescriptive Water Rights in California: An Addendum

Abstract

other western states, including Utah before and since its interesting 1939 legislation,2 emphasizes the soundness of Mr. Kletzing's conclusions. The issue discussed in most of the western appellate courts is whether the so-called codes, now adopted in some form in every western state, provide an exclusive or only an alternative method for acquiring new water rights by physical diversions of water. On United States lands new water rights are acquired only by appropriation, since according to well-known principles prescriptive rights can never be acquired against the government.3 However, where watercourses traverse private lands, rights may be acquired by prescription in most of the western states. The codes usually provide for filing formal applications, accompanied by maps and engineering data, with some state officer who then holds hearings and grants permits, often on conditions protecting the rights of other water users, present or future. The officer, of course, has the power to deny permits for good cause shown. The majority of the western courts have held that these codes are in the nature of recording acts, giving priority to applicants as of their filing dates regardless of the length of time of use, and are not the exclusive method for acquiring new rights. The continued, open, notorious, exclusive, uninterrupted, and adverse use and enjoyment of the water under a claim of right for the statutory period (in California five years)5 in most western jurisdictions constitutes the perfection of new water rights as of the end of the statutory period. These rights often are not matters of public record and when in question require proof of all the necessary facts to the satisfaction of a court.