## Facts

- Eagle Creek in Modoc County, California flowed in two branches across N. H. Finmand’s upstream riparian land and then across downstream lands owned by Pabst (one branch) and the Priors (the other branch).
- Pabst and the Priors claimed downstream riparian rights and sued to quiet title to the waters of Eagle Creek against N. H. Finmand and H. H. Finmand.
- N. H. Finmand used water on his riparian land; the record did not show his use materially reduced or interfered with the downstream owners’ reasonable needs.
- H. H. Finmand owned nonriparian lands that did not touch Eagle Creek and diverted water from the creek through two ditches to irrigate those lands.
- The trial court decreed (1) N. H. Finmand had a prescriptive right to 300 miner’s inches against plaintiffs and (2) H. H. Finmand had an appropriative/prescriptive right to 400 miner’s inches; evidence indicated much smaller flows in the ditches at the time of trial.

## Issues

1. Whether an upstream riparian owner’s use can become a prescriptive right against downstream riparian owners absent proof the use was hostile, adverse, and impaired their riparian rights.
2. Whether a nonriparian diverter can acquire a prescriptive right against riparian owners for water taken to nonriparian lands, and, if so, in what quantity.
3. What proof is required to establish the existence and extent (amount) of a prescriptive water right.

## Decision

- The California Supreme Court reversed and remanded.
- As to N. H. Finmand, the court held no prescriptive right was established against downstream riparians because his use was not shown to be adverse or in excess of reasonable riparian use that impaired plaintiffs’ rights.
- As to H. H. Finmand, the court held nonriparian diversions may ripen into prescriptive rights against riparians, but the decree awarding 400 miner’s inches lacked evidentiary support as to continuous diversion and beneficial use of that quantity during the prescriptive period.

## Legal Principles

- A riparian owner’s reasonable use on riparian land does not become prescriptive against other riparians without proof of hostile, adverse use that actually invades and impairs other riparian rights for the statutory period.
- Nonriparian lands have no riparian rights; diversion of stream water to nonriparian lands is inherently adverse to riparian owners and may support prescription if open, notorious, continuous, and maintained for the statutory period.
- The extent of a prescriptive water right is limited to the quantity actually diverted and beneficially used continuously during the prescriptive period; a court may not decree a larger amount based on claims unproven by the record.
- Reasonable-use limits among riparians are relative and depend on the competing reasonable needs of other riparian owners on the same watercourse.

## Conclusion

The court set aside decrees granting broad prescriptive quantities because the upstream riparian’s use was not proven adverse to downstream riparians and the nonriparian diverter failed to prove continuous, beneficial diversion of the large amount awarded; any prescriptive right must rest on adverse impairment and must be confined to the quantity actually and continuously used.


Pabst v. Finmand, 190 Cal. 124, 211 P. 11 (Cal. 1922)