Big Cottonwood Tanner Ditch Co. v. Moyle

WOLFE, Justice (dissenting).

The opinion of Mr. Justice Wade, in applying the English common law doctrine governing rights acquired by prescription, reaches a result which discourages the development of water conservation methods. The doctrine of acquiring a right by prescription presumes a lost grant. To ascertain the terms of the grant, the law looks to the nature of the use during the prescriptive period. If incidental benefits accrue to the owner of the servient estate, it is presumed that in the absence of said benefits the owner of such estate could have and would have stopped the use…