September October 2017

19 Professional Land Surveyors of Oregon | www.plso.org water to proceed downstream. The Court found no merit in this position howev- er, reminding Gardner that Estes had never purported to own all of the water in the creek, he had simply claimed the right to consume as much of the water as he needed at any given time, even when doing so would leave none available for others. And in fact that was exactly what Estes had done, the Court realized, at all times he had used all of the water he needed, leaving only any surplus, for which he had no need, to be used by downstream land owners. Gardner also maintained that any adverse use of the creek water by Estes was ef- fectively interrupted by the activities of Kennedy, who cut the dams built by Estes, allowing some water to flow downstream, and thereby preventing Estes from re- taining all of the water upon the Estes property. The Court rejected this argument as well however, finding that the acts of Kennedy, being covert and surreptitious in nature, did not constitute a valid interruption of the adverse water usage which was made by Estes, nor were those acts sufficient to deprive Estes of any mean- ingful amount of the water at issue, Estes still retained all of the water he needed at all times, despite the damage that was illicitly done to his dams. Moreover, the Court informed Gardner, all of the activities of Kennedy, which did not begin un- til 1884, took place only after Estes had already been using the contested water adversely for more than 10 years, so none of Kennedy’s acts could interrupt the statutory period, because it had already fully elapsed prior to those activities. Thus the Court provided a poignant reminder here that nothing which occurs af- ter a statute of limitations has expired can have any detrimental impact upon adversely created rights, and this principle applies to land rights including title to real property, as well as water rights. As can readily be seen, both Gardner and Wright stood in the shoes of their pre- decessors, Wright prevailed over Gardner because by 1882, pursuant to the applicable 10 year statute of limitations, Wright’s predecessor Estes had extin- guished all of the water rights which had been acquired by the predecessors of Gardner in 1864. The documented water rights which Gardner believed that she had acquired had legally evaporated, by adverse means, before she and her late husband ever even acquired their property, because the predecessors of the Gardners had allowed Estes to openly violate the terms of the 1864 conveyance regarding water rights for a full statutory period, through their negligent failure to either utilize or openly assert their water rights, effectively nullifying the water rights clause in the 1864 deed. As astutely noted on this occasion by the Court, in this especially cogent and informative judicial opinion, which provides an excel- lent illustration of the significance of the “caveat emptor” concept, “no principle of law is better established” than the conclusiveness of adverse possession. Gardner was vanquished, because she and her husband had neglected to take any steps to verify what they were really acquiring, prior to making their acquisition, but of course she was neither the first nor the last to experience the consequences of insufficient diligence in land acquisition. Brian Portwood is a professional land surveyor, licensed in Oregon and several other western states, who is currently a federal employee within the US Department of Energy, in which role he serves as an advisor on land rights issues that arise in the context of land acquisitions made by the Bonneville Power Administration. Water Rights Quiz