The user of the land, in order to create a right by prescription, must be continuous for the prescriptive period.28 This requirement

22. Ante, Sec. 363(c).

23. Ann Arbor Fruit & Vinegar Co. v. Ann Arbor R. R. Co., 136 Mich. 599, 66 L. R. A. 431, 99 N. W. 869; Rater v. Shuttle-field, 146 Iowa, 512, 44 L. R. A. (N. S.) 101, 125 N. W. 235; Sass-man v. Collins, 53 Tex. Civ. App. 71, 115 S. W. 337. Expressions to the contrary in Johnson v. Allen, 33 Ky. L. Rep. 621, 110 S. W. 851, are, it is submitted, erroneous.

24. Atkins v. Bordman, 20 Pick. (Mass.) 291; Hales v. Atlantic Coast Line R. Co., 172 N. C. 104, 90 S. E. 11; Wheatley v. Chrisman, 24 Pa St. 298, 64 Am. Dec. 657; Gehman v. Erdman,

105 Pa. St. 371; Ruttan v. Win-ans, 5 Up. Can. C. P. 379.

25. Gross v. Jones, 85 Neb. 77. 122 N. W. 681.

26. Webster v. Lowell, 142 Mass. 324, 8 N. E. 54; Wheeler v. Clark. 58 N. Y. 267: Whaley v. Stevens, 27 S. C. 549. 4 S. E. 145.

27. Black v. O'hara. 51 Conn. 17, 5 Atl. 598.

28. Johnson v. Lewis. 47 Ark. 66. 2 S. W. 329; Smith v. Hawkins, 110 Cal. 122. 42 Pur. Peters v. Little, 95 Ga. 101 22 S. E. 44; Bodfish v. Bodfish, 105 Mass. 317; Dummer v. U. S. Gypsum Co., 153; Mich. 622. 117 N. W. 357; Bonelli v. Blakemore, of continuity does not however involve any necessity that the user be exercised constantly and without inter-mission,29 and it is sufficiently continuous, it would seem, if it is exercised with such frequency and constancy as to affect the landowner with notice that it is being exercised.30 Occasionally it has been said that the user is sufficiently continuous if use is made of the land whenever there is any necessity for such use on the part of the claimant.31

A right of way may be acquired by prescription although the user was exercised at infrequent intervals,32 and a prescriptive right to divert water from a natural watercourse may be acquired although the diversion was not constant.33 Likewise a right to flood another's land to a certain extent may exist by prescription although the flowage is at times diminished or interrupted by

66 Miss. 136, 14 Am. St. Rep. 550, 5 So. 228; Nicholls v. Went-worth, 100 N. Y. 455. 3 N. E. 482; Geer v. Durham Water Co.. 127 N. C. 349, 37 S. E. 474; Watt v. Trapp, 2 Rich. Law (S. Car.) 136; Ferrell v. Ferrell, 1 Baxt. (Term.) 329: Texas Western Ry. Co. v. Wilson. 83 Tex. 153, 18 S. W. 325; Plimpton v. Converse, 42 Vt. 712.

29. See Kamer v. Bryant. 103 Ky. 723. 46 S. W. 14: Dana v. Valentine. 5 Mete. (Mass.) 8.

30. Pollard v. Barnes, 2 Cush. (Mass.) 191; Dummer v. U. S. Gypsum Co., 153 Mich. 622. 117 N. W. 317; Gilford v. Winni-piseogee Lake Co., 52 N. H. 262; Bodfish v. Bodfish. 105 Mass. 317; Hollins v. Verney, 13 Q. B. D. 304; Gale, Easements (8th Ed.) 186; editorial note in 11 Columbia Law Rev. at p. 674.

31. Hesperia Land & Water Co. v. Rogers, 83 Cal. 10. 17 Am.

St. Rep. 209. 23 Pac. 196; Myers v. Berven, 166 Cal. 484, 137 Pac. 260; Cox v. Forrest, 60 Md. 74; Cornwell Mfg. Co. v. Swift, 89 Mich. 503. 50 N. W. 1001: Dummer v. United States Gypsum Co., 153 Mich. 622, 117 N. W. 317; Swan v. Munch. 65 Minn. 500, 35 L. R. A. 743, 60 Am. St. Rep. 491, 67 N. W. 1022: Lake Co. v. Young, 40 N. H. 420; Jar-man v. Freeman, 80 N. J. Eq. 81. 83 Atl. 372: Garrett v. Jackson, 20 Pa. St. 331; Messinger's Appeal, 109 Pa. St. 285, 4 Atl. 162; Brand v. Lienkaemper, 72 Wash. 547, 130 Pac. 1147.

32. Cox v. Forrest, 60 Md. 74; Bodfish v. Bodfish. 105 Mass. 317; Winnipiseogee Lake Co. v. Young, 40 N. H. 420.

33. Lane v. Miller, 27 Ind. 534; Mcdougal v. Lame, 39 Ore. 212; 64 Pac. 864; Messinger's Appeal, 109 Pa. 285. 4 Atl. 162; Jordan v. Lang, 22 S. C. 159.

Reason of a lack of water, a need of repairing the dam, or other temporary condition.34

- Diversity of user. A user of another's land in one mode for part of the prescriptive period can not be added to a user in another mode for the balance of the period, in order to make up the user necessary for the creation of a prescriptive right. For instance, it the course and place of termination of a drain arc changed, the user cannot be regarded as being the same user before and after the change, for the purpose of conferring a prescriptive right.35 So it has been decided that an elevated railway structure substituted for another structure of a similar but less burdensome character could not be regarded as involving the same infringement of an abutting owner's rights.36 And the

It has been said that there must at least be an annual flowage of land in order to give a prescriptive right. Turner v. Hart, 71 Mich. 128, 15 Am St. Rep. 243, 38 N. W. 890; Gleason v. Tuttle, 46 Me. 288. See Wood v. Kelley, 30 Me. 47; Crosby v. Bessey, 49 Me. 539.

34. Cornwell Mfg. Co. v. Swift, 89 Mich. 503, 50 N. W. 1001; Reason v. Peters, 148 Mich. 532, 112 N. W. 117; Swan v. Munch, 65 Minn. 500, 60 Am. St. Rep. 491, 67 N. W. 1022; Alcorn v. Sadler, 71 Miss. 634, 42 Am. Rep. 484, 14 So. 444; Winnipiseogee Lake Co. v. Young, 40 N. H. 420; Carlisle v. Cooper, 21 N. J. Eq. 576; Ely v. State, 199 N. Y. 213, 92 N. E. 629; Gerenger v. Summers, 24 N. C. 229; Haag v. De Lorme, 30 Wis. 591.

35. Cotton v. Pocasset Mfg. Co., 13 Mete. (Mass.) 429; Totel v. Bonnefoy, 123 111. 653, 5 Am.

St. Rep. 570, 14 N. E. 687. But it has been decided that there is no interruption of the user of water from a stream on another's land by reason of a change, of not more than 200 yards, as regards the point on the stream at which the water is taken. Malley v. Weidenstein-er, 88 Wash. 398, 153 Pae. 342. This would seem questionable, since the change would involve the location of the aqueduct along an entirely different line. The authorities cited concern merely a right to divert water based on prior appropriation, not on prescription.

36. American Bank-note Co. v. New York El. R. Co.. 129 X. V 252, 29 N. E. 302. But a change in the motive power used on the elevated railroad and an increase in the length of the trains was held to be Immaterial. Bremer v. Manhattan Ry. Co., 191 N. Y. 333, 84 N. E. 59.

2 R. P. - 55 use of an additional track for "drilling" cars was held to involve a user different from that made of the tracks previously existing.37 On the other hand a change in the location of a dam by which land of another is overflowed has been held not to involve a change of user, if the same land is overflowed to the same extent,38 and a change in the mode of utilizing the water which is diverted from a stream has likewise been regarded as immaterial.39 Likewise, as previously indicated,40 a change of user does not occur merely because the extent of the flowage of land varies from time to time.

It is generally agreed, at least in this country, that to acquire a right of way by prescription, the passage during the prescriptive period must have been substantially along one line of travel,41 though it is oc37. Pennsylvania R. Co. v. Thompson, 45 N. J. Eq. 870, 14 Atl. 897, 19 Atl. 622.

38. Stackpole v. Curtis, 32 Me. 383. See Emery v. Raleigh & G. R. Co., 102 N. C. 209, 11 Am. St. Rep. 727, 9 S. E. 139. Com-nare Branch v. Doane, 17 Conn. 402.

39. Stein v. Burden, 24 Ala. 130, 60 Am. Dec. 453; Gallaher v. Montecito Valley Water Co.. 101 Cal. 242, 35 Pac. 770; Belknap v. Trimble, 3 Paige (N. Y.) 577; Smith v. Adams, 6 Paige (N. Y.) 435; Whitehan v. Brown, 80 Kan. 297, 102 Pac. 783; 3 Kent's Comm. 443.

40. Ante, this section, note 34. And it has been held that the right, by prescription, to maintain a dam at its original height is not affected by the fact that the flash boards were sometimes carried away by water and ice, or were removed to prevent them from being carried away, or for other reasons. Tosini v. Cascade Milling Co., 22 S. D. 377, 117 N. W. 1037, See also, as to flash boards, Carlisle v. Cooper, 21 N. J. Eq. 576; Hall v. Augs-bury, 46 N. Y. 622; Ely v. State, 199 N. Y. 213, 92 N. E. 629.

41. Johnson v. Lewis, 47 Ark. 66, 2 S. W. 329; Peters v. Little, 95 Ga. 151, 22 S. E. 44; Poole v. Bacon, 238 111. 305, 87 N. E. 320; Bowman v. Wickliffe, 15 B. Mon. (Ky.) 99; Hoyt v. Kennedy, 170 Mass. 54, 48 N. E. 1073; Garnett v. Slater, 56 Mo. App. 207; Holmes v. Seeley, 19 Wend. (N. Y.) 507; Bushey v. Santiff, 86 Hun (N. Y.) 384, 33 N. Y. Supp. 473; Nellis v. Countryman, 153 N. Y. App. Div. 500, 138 N. Y. Supp. 246; Arnold v. Cornman, 50 Pa. St. 3G1; Turnbull v. Rivers, 3 Mc-cord, Law (S. C.) 131, 15 Am. Dec. 622; Sassman v. Collins, 53 Tex. Civ. App. 71, 115 S. W. 337; Lund v. Wilcox, 34 Utah, 205, 97 Pac. 33; Plimpton v.

Casionally said that a slight divergence, especially if necessitated by local conditions, is immaterial.42

The fact that the use is increased during the prescription period does not, provided the nature of the user remains unchanged, preclude the establishment of a right corresponding to the original user as it existed before the change was made,43 but there is no prescriptive right corresponding to the increased user.44 except in so far as the increased user itself continues for the prescriptive period.45