Are prescriptive rights to groundwater forfeited if the holder does not assert their priority during a surplus?

Facts: A property owner held overlying rights to the groundwater below the surface of their property. A government agency appropriated

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nonsurplus groundwater openly and adversely for an uninterrupted period of five years. Through this open and adverse use, the government agency obtained prescriptive rights to the groundwater, with priority over the owner’s overlying rights to the groundwater. During a later five-year period of surplus water, the government agency continued to extract groundwater but did not assert its prescriptive rights to the groundwater over the owner and other users as the water supply was sufficient to meet all users’ needs.

Claim: The owner sought to extinguish the government agency’s prescriptive rights, claiming the rights were forfeited since the water agency failed to assert its prescriptive rights to the groundwater during the five-year surplus.

Counterclaim: The government agency sought to maintain its prescriptive rights, claiming it was not required to assert its prescriptive rights to the groundwater during the five-year surplus since there was sufficient water supply to meet all users’ needs.

Holding: A California court of appeals held the government agency’s prescriptive rights were not extinguished, since the government agency continued extracting water during the five-year surplus and was thus not required to assert its prescriptive rights to retain those prescriptive rights. [City of Santa Maria v. Adam (2012) 211 CA4th 266]

Editor’s note – To establish prescriptive rights, nonsurplus water is appropriated openly and adversely for an uninterrupted period of five years. The owner in this case erred in applying the same principle to maintaining prescriptive rights after the prescriptive rights are obtained. As long as the government agency continued to extract water during the years of surplus, which they did, their prescriptive rights were preserved.