At least two opinions that predate Shirokow hold that a lower riparian owner who directly diverts water from an upper riparian owner's land may acquire prescriptive water rights as a result of adverse use. ( Lindsay v. King (1956) 138 Cal.App.2d 333, 341 [ 292 P.2d 23]; see Saxon v. DuBois (1962) 209 Cal.App.2d 713, 720 [ 26 Cal.Rptr. 196] [following Lindsay v. King]; 62 Cal.Jur.3d (2005) Water, ยง 200, pp. 261-263 [prescriptive water rights running upstream].) Defendants have failed to convince us that these authorities should not be followed.
Under these definitions, respondents obviously became aggrieved when the Shupes filed their complaint in this action. [3] The protected "third persons" referred to in section 3399 are not those who purchase with notice, actual or constructive, of the rights of other persons whose interests have been described defectively in written instruments ( Saxon v. DuBois, 209 Cal.App.2d 713, 718 [ 26 Cal.Rptr. 196]). Notice is a question of fact ( Lindsay v. King, 138 Cal.App.2d 333, 343 [ 292 P.2d 23]).
[9] The court viewed the premises and although the record does not and could not disclose what he saw, so long as his view of the premises was authorized that which he did see is as much supporting evidence for his findings as is any proof in the record. ( Herbold v. Hardy, 104 Cal.App.2d 417 [ 231 P.2d 910]; Smith v. Smith, 135 Cal.App.2d 100 [ 286 P.2d 1009]; Memorial Hills Assn. v. Sequoia Inv. Corp., 157 Cal.App.2d 119 [ 320 P.2d 567]; Saxon v. Du Bois, 209 Cal.App.2d 713 [ 26 Cal.Rptr. 196].) Furthermore, we find nothing in the record or in the arguments of counsel which would entitle us to question the trial judge's proper application of accepted rules or precedent in analyzing the proof and in properly evaluating it. [10] In a specialty field such as land surveying a trial court is entitled to rely heavily upon the opinions and supporting reasons given by the experts who testified and unless the conclusions reached by the court are palpably erroneous they must be accepted by a reviewing court.
We cannot agree. We recognize the rule that possession may constitute notice, and we have had occasion to apply the rule very recently, in Saxon v. DuBois, 209 Cal.App.2d 713 [ 26 Cal.Rptr. 196], but we there sustained the trial judge's finding that there was notice. [3] Notice is almost always a question of fact to be determined by the trial court.
This cannot be applied to sustain this summary judgment. We do not gainsay that there may be circumstances or factual situations from which notice may be inferred, but when reliance is placed thereon summary judgment is not a proper remedy because this is a factual determination to be made by the trier of fact. "Whether a party has notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and whether by prosecuting such inquiry he might have learned such fact, are questions of fact for the court or jury," Pflueger v. Hopple, 66 Idaho 152, 156 P.2d 316, 318; Saxon v. Dubois, 209 Cal.App.2d 713, 26 Cal.Rptr. 196, 200; Vaughan v. Fuller, 278 Ala. 25, 175 So.2d 103, 105; 66 C.J.S. Notice ยง 22, pp. 675-676. The record "is constructive notice of its contents, it is not constructive notice of any mistake contained therein," Edwards v. Sergi, 137 Cal.App. 369, 30 P.2d 541, 543; Zumwalt v. Goodwin, 10 Cir., 133 F.2d 984, 988; Turner v. Liner, 31 Cal.App.2d 196, 87 P.2d 740, 743; Pan-American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803, 806; Bartkowiak v. Kley, Sup.Ct., 9 N.Y.S.2d 986, 987. From this record there is definitely no evidence of actual notice.
Whether the statutory notice requirement had been met was a question of fact. Saxon v. DuBois, 209 Cal.App.2d 713, 26 Cal.Rptr. 196 (1962). The notice issue was a claimed defect in the initiation of the prosecution.
Even without such actual knowledge they would be charged with notice of its plainly visible and continuous adverse user. (See Scott v. Henry, 196 Cal. 666, 671, 239 P. 314; Saxon v. DuBois, 209 Cal.App.2d 713, 719, 26 Cal.Rptr. 196; Amerco, Inc. v. Tullar, 182 Cal.App.2d 336, 338, 6 Cal.Rptr. 71.) The Kings, then, took title subject to the existing public right to use the road.