Quote of the Day - You ain't gonna miss your water until your well runs dry.
Water is a precious resource in California, as it is in most western states. We guard it fiercely, and range wars have started over it. Where anarchy once existed, the Water Commission Act resolved - for the most part. Water law in California is mostly settled, but there was one remaining question answered earlier this month that may likely see one more appeal to the California Supreme Court.
Can a downstream landowner obtain a prescriptive rights to water superior to the upstream owner? Before I relate the answer to that question, it would be helpful to first understand the context of the question. In eastern Fresno County, the Brewers bought land in 1979, which was serviced by a spring a mile away on other property owned by the Murphys. Later in 2001, the State Regional Water Quality Control Board issued a permit allowing the Brewers to appropriate the water from the Murphy spring.
Those who follow water law quickly picked up on the year of purchase and the year the permit was granted. Both are post-1913. A pre-1914 water appropriation is usually the only way Californians can establish water rights.
Given this court opinion, Californians can obtain prescriptive water rights through adverse possession. To establish this right, the person making the claim must show that that the use of the water is (1) actual, (2) open and notorious, (3) hostile and adverse to the original owner, (4) continuous and uninterrupted, (5) under a claim of right, (6) for the statutory period of five years. Here, the Brewers met all five requirements. They established point number five by reason of the SWRCB permit.
Note, however, that you cannot make a claim for adverse possession against the government. This method of appropriating water without a pre-1914 existing water right applies only between private parties on both sides.