| OCR Text |
Show 388 LOSS OF WATER RIGHTS IN WATERCOURSES held that the bringing of an action in ejectment against trespassers on riparian land stopped the running of the statute of limitations, after which no right to the use of the water could be acquired by its use during the pendency of the suit.676 (2) In Texas, also, it is the rule that the running of the statute of limitations may be interrupted by the institution of a suit brought by the injured party against the adverse user.677 Said the Utah Supreme Court in 1937, "To interrupt the continuity of the adverse occupant's possession, there must be a physical interruption of the adverse possession, or a suit or some unequivocal act of ownership which interrupts the exercise of the right claimed and being enjoyed by the adverse claimant." [Emphasis added.]678 (3) The Oregon Supreme Court held that a decree adjudicating water rights did not toll the statute of limitations where it was not followed by the taking of possession or by the use of the water by the successful party until a time later than the period of the statute of limitations, reckoned from the date of the decree.679 (4) In order to interrupt the running of the statute of limitations as to rights to the use of water, there must be a resumption of the possession thereof under a claim of right brought home to the adverse claimant, either by express notice or by conduct so notorious and unequivocal as to imply such notice. The interruption of the possession must rise in dignity and character to that required to initiate an adverse possession. If secret or surreptitious, it is unavailing.680 Plaintiffs' predecessors in interest had been among the defendants in an early action brought by the present defendants to establish their respective water rights and had been restrained, by a preliminary injunction entered in 1891 and still in effect, from interferring with the present defendants' diversion. Although the preliminary injunction prevented plaintiffs' predecessors from physically interfering with the diversion, it did not prevent them from asserting or establishing their rights by legal action and hence did not toll the statute. The California Civ. Pro. Code § 356 (West 1954) provides that "when the commencement of an action is stayed by injunction or statutory prohibition, the time of continuance of the injunction or prohibition is not part of the time limited for commencement of the action." The running of the statute of limitations is not interrupted by the bringing of a suit by a third party-a total stranger to the adverse transactions-against the adverse claimant. Montecito Valley Water Co. v. Santa Barbara, 144 Cal. 578, 592-593, 77 Pac. 1113 (1904). f'Alta Land& Water Co. v. Hancock, 85 Cal. 219, 227-228, 24 Pac. 645 (1890). 611 Baker v. Brown, 55 Tex. 377, 382 (1SS1); Biggs v. Leffingwell, 62 Tex. Civ. App. 665, 668, 132 S.W. 902 (1910); Woody v. Durham, 267 S.W. (2d) 219, 221 (Tex. Civ. App. 1954, error refused). 678Hammond \. Johnson, 94 Utah 20, 34-35, 66 Pac. (2d) 894 (1937). 619Ebell\. Baker, 137 Oreg. 427, 437-438, 299 Pac. 313 (1931). 6*°Armstrong v. Payne, 188 Cal. 585, 596-597, 206 Pac. 638 (1922); Hammond v. Johnson, 94 Utah 20, 34-35, 66 Pac. (2d) 894 (1937). Also see the earlier discussion in the subtopics "Interruption of adverse use" and "Some circumstances negating interruption of adverse use" under "Continuous and Uninterrupted Use." |
