Brewer

After a bench trial, the court ruled that plaintiffs acquired prescriptive rights to take water from a spring on defendants’ property and to maintain a water line across defendants’ property for that purpose.

Defendants appeal, claiming the trial court’s decision was based on legal error and its findings of fact were not supported by substantial evidence. Defendants contend that (1) post-1913 prescriptive rights to surface water are not recognized by California law, (2) substantial evidence does not support the finding that the water line was visible, open and notorious, (3) the purported visibility of the water line was not sufficient to provide constructive notice of the diversion of water from a spring unknown to defendants, and (4) plaintiffs failed to prove their use of the water and water line was hostile and adverse. We will reject each of these arguments and affirm the judgment.

Part II. of this opinion is published because it addresses a question noted and not resolved by the California Supreme Court—namely, “whether . . . prescriptive rights in [surface] water may be perfected as between private parties.” (People v. Shirokow (1980) 26 Cal.3d 301, 312, fn. 15 […