OCR Text |
Show PRESCRIPTION 375 prescription was thus explained by the Oregon Supreme Court:601 It is the office of the statute of limitations, as enacted by our legislatures, as well as recognized by the courts from earliest history on the subject, to prevent and avoid the uncertainty in titles and property rights which would necessarily exist if persons were permitted to wait until after a generation had passed away, taking with it the most capable witnesses, before questioning another's rights. It is therefore settled that title by adverse possession may be acquired regardless of the good faith of the claimant, if accompanied by even a pretense, commonly known as a claim of title. (5) Where the conduct of prescriptive claimants is such as to indicate a recognition of a paramount right in others, there can be no basis for a finding of adverse possession by such claimants.602 (6) In an action to quiet title to a spring located on defendants' land and to other facilities necessary to convey the water to plaintiffs adjoining property, the fact that plaintiff testified that he laid no claim to ownership of any of defendants' land on which the spring was located did not affect plaintiffs right to a title to the water right by prescription.603 Presumption of claim of right.-When the adverse claimant shows open, visible, continous, and unmolested use for the statutory period, such use will be presumed to be under a claim of right, and not by license.604 Color of title.-(\) Color of title is a pretext, guise, or semblance of a title, as distinguished from a complete, formal, unassailable title of public record. (2) In the statutes of limitation of actions to recover real property in a number of the Western States, color of title is included as an element of adverse possession. In most of these particular statutes, color of title appears in one or two out of several categories; and in various instances this is designated "claim and color of title." However, the applicable statutes in a number of other States do not mention color of title.605 According to the Wyoming Supreme Court, "In this state * * * it is not necessary that adverse possession be founded upon color of title."606 «0149Oreg. at 627. 602Sherlock v. Greaves, 106 Mont. 206, 216, 76 Pac. (2d) 87 (1938). 60*Malnati v. Ramstead, 50 Wash. (2d) 105, 108-109, 309 Pac. (2d) 754 (1957). 604Te Selle v. Storey, 133 Mont. 1, 5-6, 319 Pac. (2d) 218 (1957);Ramseyer v. Jamerson, 78 Idaho 504, 511, 305 Pac. (2d) 1088 (1957); Kougl v. Curry, 73 S. Dak. 427, 432-433, 44 N.W. (2d) 114 (1950). 60s Details are shown later under "Statute of Limitations-Abstracts of Western State statutory limitation periods pertaining to adverse possession of land." 606Gustin v. Harting, 20 Wyo. 1, 20, 121 Pac. 522 (1912). More recent court decisions in this and some other States have raised questions concerning whether prescriptive water rights can any longer be acquired. See "Establishment of Prescriptive Title-Possibility of Establishing Prescriptive Water Right Negated or Questioned-Questionings," infra. |