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Prescriptive Water Rights Confirmed

By: Alfred E. Smith

Is someone using water that belongs to you?  If so, you may need to act to protect your rights under a recent decision from the California Court of Appeal – Brewer v. Murphy (2008) 161 Cal. App. 4th 928.  This case holds that a person can take surface water rights belonging to another if he appropriates the water openly and without permission for five years or more.  The decision resolves an issue left open by the California Supreme Court in People v. Shirokow (1980) 26 Cal.3d 301, confirming that a private party may acquire surface water rights by prescription, even if that party did not comply with the permitting requirements of the State Water Resources Control Board ("SWRCB").


The Brewer case began when a landowner named Stephan Hagg discovered a metal pipe running through an overgrown streambed on his property.  He followed the pipe and learned that it transported water from a spring on the property of his upstream neighbors Dean Murphy and Keith Klein to the house of Hagg's downstream neighbors Lyle and Elizabeth Brewer.  Believing that he had a right to use at least some of the water running through his streambed, Hagg approached the Brewers and asked to tap into the water pipe.  The Brewers refused.  They claimed that the pipe had been connected to their property on the day that they had bought it more than 20 years before, and that they needed the water to supply their house, garden, and livestock.


Hagg tapped into the water line anyway, so the Brewers filed complaints both with the SWRCB and with a state court.  The Brewers won both proceedings.  The state court held that the Brewers owned a 20-foot-wide easement across Hagg's land to transport water through the streambed, and to access and maintain their pipe.  The SWRCB also granted the Brewers the right to the water in that pipe.


The SWRCB did not grant or deny the Brewers the right, however, to take water from the spring that fed their pipe.  The SWRCB staff told the Brewers that they needed permission to extract that water from Murphy and Klein, the spring's owners.  Murphy and Klein did not grant consent, so the Brewers sued them.


At trial, the Brewers claimed that they had a prescriptive easement that gave them the right to take water from the spring.  A prescriptive easement is a legal right to use another's property for a specific purpose.  In California, a prescriptive easement arises when a person uses property that belongs to somebody else for a specific purpose without permission for five years, and the property's owner is on notice of the use but does not act to stop it.  The Brewers claimed that they had a prescriptive easement to run a water pipe from the spring across the property of Murphy and Klein because they had done so openly for decades without interference from any of the persons who had owned the property during that time.


Murphy and Klein raised two main defenses.  First, they argued that they had not been on notice that the Brewers were taking their water, because they had not known that the water pipe or the spring existed until the Brewers approached them.  Although some of the pipe was buried or hidden by overgrowth, the Court held it was visible enough that Murphy and Klein should have noticed it, even if they did not in fact do so.


Second, Murphy and Klein contended that California law does not permit people to obtain water rights by prescription.  They relied upon People v. Shirokow, supra, a California Supreme Court case holding that the doctrine of prescription could not be used to circumvent the authority of the SWRCB.  In Shirokow, the SWRCB ordered a rancher to drain a long-standing reservoir because its dam had been built without a permit.  The rancher refused, claiming that he had obtained the right to the water by prescription.  The Supreme Court sided with the SWRCB, holding that the prescription doctrine does not apply against the State.  If the rancher wanted to keep his reservoir, then he needed to obtain permission from the SWRCB in accordance with California's Water Code.


Murphy and Klein argued that, under Shirokow, the Brewers could not take water from the spring, because the SWRCB had not granted them a right to that water.  But the Court of Appeal refused to read Shirokow that broadly.  Shirokow only held that a person cannot enforce a prescriptive easement regarding water against the SWRCB, the Court of Appeal ruled.  Private parties may still obtain prescriptive water rights against other private parties.  The Brewers had satisfied all of California's prescriptive-easement requirements with regard to Murphy's and Klein's spring, the Court held, so the Brewers were entitled to continue using their pipe to extract that spring's water.


The Brewer v. Murphy decision is important for two reasons.  First, it clarifies the meaning and scope of the prescriptive-easement rule that California's Supreme Court announced in Shirokow.  Perhaps more importantly, however, Brewer is a warning to all property owners and water users: if you don't know or don't act to protect your water rights, then you may someday find that another has obtained a legal right to your water.


Alfred E. Smith, II specializes in environmental, water and complex commercial litigation.  He represents public and private water purveyors, major water users, corporations and public agencies on matters including environmental compliance, water rights disputes, conjunctive use, public utility regulation, groundwater management and litigation over allegedly contaminated water and soil.  He can be reached at (213) 612-7800 or

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