This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In order that a right of using another's land be acquired by lapse of time, the user must have been such as to give rise to a right of action on the part of the owner, since, if he cannot legally protect himself against the user, no inference can be drawn from his failure to do so.9 Provided a right of action exists on account of the user of the land, the fact that there is, by such user, merely an infringement of the right of property, and no actual damage to the land, does not prevent the running of the prescriptive period.10 And so it has been held that one may acquire by prescription, as against a lower riparian owner, the right to divert water from the stream, although such a lower owner has, during the prescrip9. Stouts Mountain Coal & Coke Co. v. Ballard, 195 Ala. 283, 70 So. 172; Miller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 147 Pac. 567; Whiting v. Gaylord, 66 Conn. 337, 50 Am. St. Rep. 87, 34 Atl. 85; Mitchell v. City of Rome, 49 Ga. 19; Gilmore v. Driscoll, 122 Mass. 199, 207; Turner v. Hart, 71 Mich. 128, 15 Am. St. Rep. 243, 38 N. W. 890; Roe v. Howard County, 75 Neb. 448, 5 L. R. A. N. S. 831, 106 N. W. 587; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276; Carlisle v. Cooper, 19 N. J. Eq. 256; Emery v. Raleigh & G. R. Co., 102 N. C. 210, 11 Am. St. Rep. 727, 9 S. E. 139; Wimer v. Simmons, 27 Ore. 1, 50 Am. St. Rep. 685, 39 Pac. 6; Williams v. Haile Gold Min. Co., 85 S. C. 1, 7, 66 S. E. 117, 1057; St. Martin v. Skamania Boom Co., 79 Wash. 393, 140 Pac. 355; Eells v. Chesapeake & O. Ry. Co., 49 W. Va. 65, 87 Am. St. Rep. 737, 38 S. E. 479.
6. Chalker v. Dickinson, 1 Conn. 384, 6 Am. Dec. 250; Day v. Day, 4 Md. 262; Lakeman v. Burnham, 7 Gray (Mass.) 437; Hume v. Rogue River Packing Co., 51 Ore. 237, 31 L. R. A. (N. S.) 396, 131 Am. St. Rep. 732, 83 Pac. 391, 92 Pac. 1065, 96 Pac. 865; Sloan v. Biemiller, 34 Ohio St. 492.
7. Stillman v. White Rock Mfg. Co., 3 Woodb. & M. (U.
S.) 538; Cave v. Crafts. 53 Cal. 135; Trenton Water Power Co. v. Raff. 36 N. J. L. 335; Rhodes v. Whitehead, 27 Tex. 304.
8. See Lehigh Valley R. Co. v Mcfarlan, 43 N. J. L. 605. 622. In Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 77 Pac. 1113. it is said that peaceable in this connection means uninterrupted.
So it has been held that prescription commenced to run in favor of a right to overflow another's land, not upon the erection of the appliance or structure, which ultimately caused the overflow, but only when the overflow began. Galbreath v. Hopkins, 159 Cal. 297, 113 Pac. 174; Dutton v. Stoughton, 79 Vt. 361, 65 Atl. 91; Hume v. Grand Trunk Western R. Co., 192 Mich. 225, 158 N. W. 840.
10. Heilbron v. Fowler Switcn Canal Co., 75 Cal. 426, 7 Am. St. Rep. 183, 17 Pac. 535; Mott v. Ewing, 90 Cal. 231, 27 Pac. 194; Bolivar Mfg. Co. v. Neponset Mfg. Co., 16 Pick. (Mass.) 241; Dana v. Valentine, 5 Mete. (Mass.) 8; Parker v. Foote, 19 Wend (N. Y.) 309; Tootle v. Clifton, 22 Ohio St. 247, 10 Am. Rep. 732; Olney v. Fenner, 2 R. I. 211, 57 Am. Dec. 711; Mally v. Weidensteiner, 88 Wash. 398, 153 Pac. 342.
In Maine there is, in the absence of actual damage, no right of action on account of the flowage of land, the common law right of action in this regard being superseded by the flowage statute. Hathorne v. Stinson, 12 Me. 183, 28 Am. Dec. 167; Seid-ensparger v. Spear, 17 Me. 123, 35 Am. Dec. 234. And there a perceptible amount of damage tive period, no need of a quantity of water greater than that which still remains in the stream.11 That there is sufficient water for all would seem to have its chief significance as tending to exclude any inference of notice to the riparian owner of the adverse user of the water.12
The question whether a prescriptive right can be acquired as against a reversioner or remainderman would ordinarily depend upon whether the user is such as to give him a right of action in spite of the fact that the seems to be regarded as necessary even in other cases. Crosby v. Bessey, 49 Me. 539, 77 Am. Dec. 271; Lockwood Co. v. Lawrence, 77 Me. 297, 52 Am. Rep. 763.
11. Bolivar Mfg. Co. v. Nepon-set Mfg. Co., 16 Pick. (Mass.) 241; Olney v Fenner, 2 R. I. 211. 57 Am Dec. 711; Messinger's Appeal, 109 Pa. 285; Cape v. Thompson, 21 Tex. Civ. App. 681. But occasionally a contrary view appears to have been applied as regards prescription against a riparian owner. See Anaheim Water Co. v. Semi Tropic Water Co., 64 Cal. 185, 30 Pac. 623; Meng v. Coffey, 67 Neb. 500, 60 L. R. A. 713, 108 Am. St. Rep 697, 93 N. W. 713; Red water Land & Canal Co. v. Jones, 27 S. D. 194, 130 N. W. 85; Martin v. Burr - Tex. Civ. App. - , 171 S. W. 1044. See the query in this regard in Wiel Water Rights in the Western States (2nd Ed.) 380. A like view has been asserted as regards a right to take water from another's spring, to the effect that it was not established by the long continued taking of the water, if the owner of the spring had all the water which he needed. Jobling v. Tut-tle, 75 Kan. 351, 9 L. R. A. (N. S.) 960, 89 Pac. 699.
As against a prior appropria-tor, as distinguished from a riparian owner, prescription runs only when the prescriptive claimant so uses the water as actually to deprive the prior appropria-tor of some part of the water to which he is entitled under his appropriation and which is needed by him. Egan v. Estrada.
6 Ariz. 248. 56 Pac. 721; Church v. Stillwell, 12 Colo. App. 43. 54 Pac. 395; Brossard v. Morgan.
7 Idaho, 215, 61 Pac. 1031; Tal-bott v. Butte City Water Co.. 29 Mont. 17, 73 Pac. 1111; Smith v. Duff, 39 Mont. 102 Pac. 381; Ison v. Sturgill, 57 Ore. 109, 109 Pac. 579, 110 Pac. 535; Henderson v. Gaforth. 34 S. D. 441. 148 N. W. 1045; Miller v. Wheeler, 54 Wash. 429, 103 Pac 641; Samler v Bull, 76 Wash. 1, 135 Pac. 489.
12. So it is said in Watts v. Spencer, 51 Ore. 262, 94 Pac. 39 that there is no adverse user until the owner is deprived of the benefits of the use of the water in such a substantial manner as to know that his right is invaded.
Possession is in another.13 In case he has a right of action, and fails to exercise it,14 the doctrine of prescription is, it seems, applicable as against him as if he had an estate in possession,15 unless some special method is provided by statute to prevent the acquisition of such a right by prescription, and he adopts it.16
In no case, it seems, does the existence of an outstanding particular estate prevent the application of the doctrine as against the reversioner or remainderman, if such particular estate was created after the prescriptive period had commenced to run.17 And the general docrine has been regarded as applying in spite of an outstanding tenancy from year to year, it being said that the owner of the fee "had the right to bring suit every year."18 But as to this last case there might be some question, if the tenancy from year to year was created before the commencement of the prescriptive period, and if the user were not such as to give a right of action to one who has a reversion upon a tenancy for years. The owner of the fee should not be under an obligation to bring suit if this could be done only by terminating the tenancy.19
If one has a right of user by grant, express or implied, his exercise of such user is to be imputed to such grant,2021 and being rightful, no prescriptive right can be acquired thereby. And so one who has a way of
13. See Phillips v. Phillips. 186 Ala. 545, 65 So. 49; Reimer v Stuber, 20 Pa. St. 458; Cunningham v. Dorsey, 3 W. Va. 293. Pentland v. Keep, 41 Wis. 490.
14 The extent to which a reversioner has such a right is discussed in 2 Tiffany, Landlord & Tenant, Sec. 353.
15. See Gale, Easements (8th Ed.) 215.
16. As in Massachusetts, in the case of a right of way. See Mass. Rev. Laws p. 1260; Ballard v. Demmon, 156 Mass.
449, 31 N. E. 635
17. Cross v. Lewis, 2 Barn. & Cr. 686; Ballard v. Demmon, 156 Mass. 449, 31 N. E. 635; Ward v. Warren, 82 N Y. 265; Stothart v. Hilliard, 19 Ont. 542.
18. Reimer v. Stuber, 20 Pa. St. 458.
19. See ante, Sec. 506, note 99. 20-21. Atkins v. Boardman, 2
Mete. (Mass.) 457, 37 Am. Dec. 100; Smith v. Hope Min. Co., 18 Mont. 432, 45 Pac. 632; Smith v. Wiggin, 52 N. H. 112. See Horn v. Miller, 142 Pa. St. 557necessity, on the theory of implied grant,22 cannot acquire, by the user of the way for the prescriptive period before the necessity ceases, a right to the way after the necessity ceases.23 But even though one has a valid grant of a perpetual right of user in particular land, he may, by a user of the same land in a manner different from that named in the grant, or to a greater extent, acquire an easement by prescription in addition to that named in the grant,24 provided the different or more extended user is known to the landowner.25
The user of a public highway by an individual cannot be effective as against the owner of the land on which the highway is located, so as to create a prescriptive right to a way in an individual using the highway, since the owner of the land cannot, while it is used as a highway, prevent passage thereon by such individual.26 But such user may become adverse upon the abandonment of the highway.27