Recreational Land Use as a Basis for Adverse Possession

Instream water use for habitat enhancement and recreation was trumped early in the West by diversions for irrigation and mining under the doctrine of prior appropriation. These dominant uses reflected what was regarded as valuable and warranted at the time. Although new scarcities and priorities are leading to revisions in state laws regarding instream flows, statutory remedies alone can put precious little water back in Western streams. This paper argues that historical bias has also worked against land-based habitat enhancement and recreation. In particular, state laws relating to adverse possession of land still favor extractive uses over nonconsumptive uses.