A prescriptive right is a right obtained through the open and notorious adverse use of another’s water rights. By definition, adverse use is not the use of a surplus, but the use of non-surplus water to the direct detriment of the original rights holder.
Prescriptive rights are difficult to obtain and can only be granted by a court. Most people in California do not have and cannot acquire a prescriptive right. The courts have clarified that since 1914, the only way to acquire a new water right is to apply for and receive a water right permit from the State Water Board.