(dissenting in part) — Defendants are owners of platted lots which originally abutted on Lake Chelan, a navigable waterway. In 1927, Chelan Electric Company obtained a permit to raise the water of the lake to a level 21 feet above its natural level. This permit was in connection with the construction of a dam for electrical power generation. The power company owned the subject lots at the time thie permit was obtained. Subsequently, it conveyed them subject to its permit rights to seasonally flood the premises.15
Accordingly, we are considering the right of defendants as littoral owners to raise the level of the land to create upland out of that which is, by reason of the flowage ease*319ment, seasonally foreshore land. We are not here considering foreshore lands of the natural lake. The distinction is determinative.
Against this asserted right of the defendants is the claim of plaintiffs that, as members of the public, they have the right of navigation, swimming, boating and recreation on the waters of navigable Lake Chelan, including the waters which seasonally submerged defendants’ property. Plaintiffs further claim a right of view over defendants’ lands. Plaintiffs are not littoral owners as to the natural lake.
The trial court based its judgment for plaintiffs on prescription. The court found that the public had seasonally used the waters overlying defendants’ lots for fishing, boating, swimming and general recreational use for some 35 years, and that such use was open, adverse, notorious and uninterrupted for that period. Defendants do not challenge the finding as to the time period. Accordingly, I will assume that the use by the public was uninterrupted and continuous, though seasonal. However, defendants do challenge the finding that the use by the public was adverse.
To properly focus on the issue before us, it should be pointed out that we are not concerned with the public or plaintiffs’ use of the waters of Lake Chelan which seasonally overflow defendants’ premises. During such period of flooding, the surface of the lake is thereby expanded and the public may well have the right to use the waters for all navigational uses. That is not the issue before us. Rather, the issue is whether the use of these expanded waters, while in existence, confers on the public the right to have such inundation of defendants’ lands continued. It is in this connection that we must review the record for substantial evidence to support the trial court’s finding that the use was adverse. Was the use such as to put defendants on notice that a hostile claim was being exercised so that inaction on defendants’ part would deprive them of the property? I think not. There would be no reason to object to the boating, fishing and swimming in these waters as defendants did not claim a right to the waters. They claim only the seasonally submerged land. The use of the lake *320surface was not, in itself, harmful to defendants’ property-rights. A protest would have been most unnatural as well as unneighborly.
We have long recognized a different rule for adverse possession of open, vacant and unoccupied lands from that applying to enclosures. Watson v. County Comm’rs of Adams County, 38 Wash. 662, 80 P. 201 (1905). In Watson we quoted with approval from O’Connell v. Chicago Terminal Transfer R.R., 184 Ill. 308, 56 N.E. 355 (1900):
where land is vacant and unoccupied and remains free to public use and travel until circumstances induce the owners to enclose it, the mere travel across it, without objection from the owners, does not enable the public to acquire a public road . . . [it] is regarded merely as a permissive use.
We then observed
[I]n order to give a prescriptive right, the use must at least be such as to convey to the absent owner reasonable notice that a claim is made in hostility to his title. It seems to use that any other rule amounts to a practical confiscation of private property for public purposes.
This rule is with sound reason because to take property by user there must be the element of notice to the owner of the allegedly servient estate that the user is laying a claim by the use. To break an enclosure, use an occupied area, or use property in any manner which gives a reasonable person notice of a claim against his property will give rise to an inference that the use is adverse. Cuillier v. Coffin, 57 Wn.2d 624, 358 P.2d 958 (1961).
Conversely, use of property which is open, vacant and unimproved creates no such notice. A reasonable person could not be expected to assume hostility solely from a use which is not interfering with his own use of his own land. It seems only reasonable that the rule applicable to open, vacant and unoccupied lands should apply to the instant case. If so applying the rule, I find no evidence at all to support a finding of hostile and adverse use.
I have reviewed the trial court’s oral decision to determine the basis for his finding that plaintiffs’ use was ad*321verse. There is no discussion of the point. He discussed only the time and continuity elements. Thus, in my opinion, the finding of a prescriptive right must fall.
The majority opinion reaches the conclusion that the fill on defendants’ lots is to be removed on the basis that this fill constitutes an obstruction to navigation. Analogizing from the rule that the public has the right to the use of navigable water at both high levels and low levels, subject to the right of littoral owners to reasonably obstruct them with “aids to navigation” such as docks, wharfs, etc. (see 31 A.L.R. 976 (1924)), the majority holds that fluctuations of water levels which are artificially created are no different then fluctuations created by nature.
The difficulty, as I view it, is that under the majority’s holding there is a taking of defendants’ property right for public use without just compensation. Defendants (through their antecedents in the chain of title) have a full fee title diminished only by the right of the power company to periodically inundate their lands to a specific elevation. I see no reason in law or equity for preventing such an owner from protecting his land against such inundation by raising the grade of the land.
The periodic flooding involved here is entirely different from a natural raising and lowering of the lake level by reason of rains, seasonal runoff, and drought. In the latter instance, the littoral owner’s rights to the foreshore lands between high and low water, whatever these rights may be, are subject to the public’s navigation rights. Here, the defendants’ lots, all of which lie above natural high water, are not subject to public navigation rights unless there has been a voluntary conveyance, eminent domain proceedings, estoppel, or loss through prescription. Unless precluded by one of the aforementioned reasons, defendants have the right to use their lots, including the right to change the grade thereof, in order to make any lawful use thereof. Accordingly, I do not agree that the fill on defendants’ lots is unlawful. They should not be required to remove it.
*322I am in accord with the majority’s conclusion as to the vacated streets. Defendants’ claim of ownership of the vacated streets, whatever it may be, is limited by the terms of the 1927 conveyance from Chelan Electric Company to the public. Accordingly, defendants do not have a right to raise the level of the street area and thereby deprive the public of the access and use of the water over the vacated streets. Any fill on these vacated streets should be abated. I also agree that the damages recoverable are limited to interference with rights of navigation.
I would remand with instructions to limit an abatement order to the area of the vacated streets and limit plaintiffs’ proof of damages to their loss of navigation rights, primary and secondary, caused by the fill on the former street area.
Hunter, C. J., and Donworth, J. Pro Tern., concur with Neill, J.
May 7, 1970.. Petition for rehearing denied.
The record does not disclose whether this was a flowage easement or whether it was more extensive and included the right to seasonally maintain a reservoir on the subject lands. Cf. Watuppa Reservoir Co. v. Mackenzie, 132 Mass. 71 (1882), with Tiffany v. Town of Oyster Bay, 234 N. Y. 15, 136 N.E. 224, 24 A.L.R.1267, (1922). However, this distinction is important only to the Chelan County PUD, as successor in interest oí Chelan Power Company, which is not a party to these proceedings.