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Show PRESCRIPTION 373 his part to stop the invasion. If, as stated at the end of the immediately preceding subtopic, the adverse claimant voluntarily ceases his unlawful taking of the water because of the rightful owner's demands that he do so, it is important to note than an entirely different situation is presented. In a 1901 Utah case, competent and material evidence tending to show a recognition or acknowledgment on the part of the adverse parties of the possession and use of the waters in the rightful owners, and compliance with their demands, was held to defeat the operation of the statute and procuring of any title by prescription.586 (2) "An occasional suspension of interruption of the enjoyment will not defeat the right, if it arises from such causes as the dryness of the season; a temporary failure to exercise the right to the extent claimed; or fluctuations in the flow of the stream."587 Peaceable possession.-The word "peaceable" has been used in a number of cases in connection with continuous and uninterrupted uses, such as that the use of water was "continuous, uninterrupted, peaceable."588 The possession is peaceable if it has not been disturbed or molested,589 or if the use of the water has not been interrupted.590 And so, said the California Supreme Court, the statement that the adverse use must be peaceable means no more than that it must be uninterrupted: "If the possession has been uninterrupted, of necessity it has been peaceable. If it had been interrupted, of necessity it has not been peaceable. The words are.therefore interchangeable and synonymous in the pleading of prescriptive title."591 5*6Wasatch In. Co. v. Fulton, 23 Utah 466, 468, 65 Pac. 205 (1901). The evidence showed that the demands of the rightful parties were acquiesced in at a meeting; as a consequence, water which had been diverted by the adverse claimants was turned down the stream for the rightful owners' use. "This tended to establish an interruption of the continuity of the defendants' possession, and negative any assent by the plaintiffs to the use of the water by the defendants." 587 Warren v. Crafton Water Co., 139 Cal. App. (2d) 314, 324, 293 Pac. (2d) 506 (1956); interruptions by dry season, Hargraves v. Wilson, 382 Pac. (2d) 736, 739 (Okla. 1963). SBSSpargur v. Heard, 90 Cal. 221, 229, 27 Pac. 198 (1891); Kountz v. Carpenter, 206 S.W. 109, 110 (Tex. Civ. App. 1918); " 'Peaceable possession' is such as is continuous and not interrupted by adverse suit to recover the estate." Tex. Rev. Civ. Stat. Ann. art. 5514 (1958); Center Creek Water & In. Co. v. Lindsay, 21 Utah 192, 200, 60 Pac. 559 (1900); "While it is true that some courts in enumerating the elements necessary to acquire title by prescription delcare that the possession must be peaceable, they mean nothing more than that it must be continuous-that is, that it must not be interrupted by the owner of the servient estate," Hays v. De Atley, 65 Mont. 558, 561, 212 Pac. 296 (1923); Havre In. Co. v. Majerus, 132 Mont. 410, 415, 318 Pac. (2d) 1076 (1957); Henderson v. Goforth, 34 S. Dak. 441, 447, 148, N.W. 1045 (1914). "'Northern Cal. Power Co., Consol. v. Flood, 186 Cal. 301, 306, 199 Pac. 315 (1921). 590 Campbell v. West & Mathis, 44 Cal. 646, 648 (1872). S91Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 596-597, 77 Pac. 1113 (1904). |
