In order that the doctrine of prescription may operate in one's favor he must have actually used the land of another and the mere assertion of a right to use it is insufficient.61

56. Richart v. Scott, 7 Watts (Pa.) 460; Mitchell v. City of Rome, 49 Ga. 19, 15 Am. Rep. 669; Tunstall v. Christian, 80 Va. 1, 56 Am. Rep. 581; Handlan v. Mcmanus, 42 Mo. App. 551; Sullivan v. Zeiner, 98 Cal. 346. See Gilmore v. Driscoll, 122 Mass. 199, 207. But see City of Quincy v. Jones, 76 111. 231, 20 Am. Rep. 243; Lasala v. Holbrook, 4 Paige (N. Y.) 169, 25 Am. Dec. 524.

57. Dalton v. Angus, 6 App. Cas. 740; Lemaitre v. Davis, 19 Ch. Div. 281.

58. Bright v. J. Bacon & Sons, 131 Ky. 848, 20 L. R. A. (N. S.) 386, 116 S. W. 268 {dictum); Dowling v. Hennings, 20 Md. 179; Brown v. Werner, 40 Md. 15; Schile v. Brokhahus, 80 N. Y.

614; Weadock v. Champe, 193 Mich. 553, Ann. Cas. 1918C 874, 160 N. W. 564; Mcvey v. Durkin, 136 Pa. St. 418, 20 Atl. 541; First Nat. Bank of Wichita Falls v. Zundelowitz, - Tex. Civ. App. -, 168 S. W. 40.

59. As in Barry v. Edlavitch, 84 Md. 95, 33 L. R. A. 294, 35 Atl. 170; Mclaughlin v. Cecconi, 141 Mass. 252, 5 N. E. 261.

60. See Whiting v. Gaylord, 66 Conn. 337, 50 Am. St. Rep. 87. 34 Atl. 85.

61. Peterson v. Mccullough, 50 Ind. 35; Gibson v. Fischer, 68 Iowa, 29, 25 N. W. 914; Fox River Flour & Paper Co. v. Kelley, 70 Wis. 287, 35 N. W. 744.

It has occasionally been asserted that no right of user can be acquired by prescription unless the user was, during the prescriptive period, actually beneficial to the person exercising it.0- In some of these cases the question was as to the acquisition of the right to divert water from a stream, and the assertion of the requirement of beneficial user involved merely the application to the case of prescription of a requirement recognized in those jurisdictions in connection with the law of prior appropriation.63"since a right of appropriation cannot be held without beneficial use, one pretending to be an appropriator has no color of title without beneficial use."64 However, the propriety of such a requirement of beneficial use as an element of prescription even in those states has been questioned.65 And, generally speaking the introduction of any additional requirements as to the characteristics of the user necessary for the purpose of prescription is to be deprecated, as adding to the existing complexity of the subject.