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Show 372 LOSS OF WATER RIGHTS IN WATERCOURSES These effective interruptions may consist of diversions of the water upstream by the rightful holder of the water right.581 Other interruptions have been caused by physical force.582 As noted at the outset of this discussion of "Continuous and Uninterrupted Use," and also later under "Statute of Limitations-Tolling of the statute," there have been holdings or expressions to the effect that the institution of a suit brought by the true owner against the adverse claimant during the statutory prescriptive period stops the running of the statute of limitations, together with a deviation from that literal rule. (8) From a review of the authorities in 1943, the Utah Supreme Court summarized the situation by concluding: (a) there must be an actual physical interruption, mere words alone not being sufficient; (b) a single interruption will suffice even though the owner knows that the adverse party will turn the water back into his ditch as soon as the owner leaves; (c) the interruption must rise in dignity and character to that required to initiate an adverse possession, that is, it must be open, notorious, under claim of right, and there must be no attempt at concealment; and (d) the interruption must be under such circumstances as to constitute a reassertion of ownership under a claim of right.583 Lest a part of the foregoing be misconstrued, it is well to state here that although words alone are not sufficient, as emphasized under the next subtopic, demands by the rightful owner that are acquiesced in and complied with by the adverse party fall into an entirely different category. Some circumstances negating interruption of adverse use.-(I) The mere protest of the record owner of the right, or his disputing of the invading party's right to the claimed possession, will not prevent the running of the statute of limitations.584 In other words, mere denials (on the part of the rightful owner of the claim of the adverse claimant), complaints, remonstrances, or prohibi- tions of use, unaccompanied by any act which in the law would amount to a disturbance and be actionable as such, will not prevent the acquisition of a prescriptive right.58S It is implicit from the court cases discussed above, and others to like effect, that the adverse claimant's possession and use continued despite the rightful owner's protests and remonstrances unaccompanied by some positive action on interruption of the use of water, Authors v. Bryant, 22 Nev. 242, 246-247, 38 Pac. 439 (1894). 5B1Rice v. Meiners, 136 Cal. 292, 293, 68 Pac. 817 (1902). s"Anderson v. Bassman, 140 Fed. 14, 25 (C.C.N.D.Cal. 1905); Armstrong v. Payne, 188 Cal. 585, 598, 206 Pac. 638 (1922). s" Wellsville East Field In. Co. v. Lindsay Land & Livestock Co., 104 Utah 448,466,137 Pac. (2d) 634 (1943). SMCox v. Clough, 70 Cal. 345, 347, 11 Pac. 732 (1886); Conness v. Pacific Coast Joint Stock Land Bank, 46 Ariz. 338, 340-341, 50 Pac. (2d) 888 (1935). "Nor would mere words alone suffice." Wellsville East Field In. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 463, 137 Pac. (2d) 634 (1943). S8S Oregon Land & Constr. Co. v. Allen Ditch Co., 41 Oreg. 209, 220, 69 Pac. 455 (1902). |
