| OCR Text |
Show PRESCRIPTION 367 Continuous and Uninterrupted Use In what appears to have been its first decision with respect to the loss of a water right by adverse possession, the California Supreme Court states that the person claiming a right by such adverse possession must have had the continued, uninterrupted, and adverse enjoyment of the right for the period prescribed by the statute of limitations.552 Both of the terms "continuous" and "uninter- rupted" have been frequently used in discussions of elements of the prescriptive right.553 The association of these terms is indeed close; in fact, to be continuous, the use under many circumstances must have been uninterrupted.554 However, although nearly alike, the two terms are not always exactly synonymous in law. For example, it has been held or suggested in some cases 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. In a California case, Alta Land & Water Company v. Hancock, two squatters on private land used water thereon adversely and continuously for 11 years, but just before expiration of the period of limitation, the use was interrupted by the bringing of an action in ejectment. Although this interruption did not break the continuity of use until final judgment and writ of possession 6 years later, nevertheless it stopped the running of the statute. After that, no right could be acquired by adverse use during the pendency of the suit.555 By contrast, 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.556 Continuous use.-(l) To acquire the acquisition of a prescriptive right, adverse use of the water must have been continuous for the period prescribed by the statute of limitations.557 A prescriptive right often may be applicable to only a part of another's water right. See "Measure of the Prescriptive Right-Part of Invaded Right Only," infra. SM Union Water Co. v. Crary, 25 Cal. 504, 509 (1864). ss3Hays v. De Atley, 65 Mont. 558, 561, 212 Pac. 296 (1923); Kuhlmann v.Platte Valley Irr. Dist., 166 Nebr. 493, 512, 89 N.W. (2d) 768 (195S); Heard v. Texas, 146 Tex. 139, 146, 204 S.W. (2d) 344 (1947); Ephraim Willow Creek Irr. Co. v. Olson, 70 Utah 95, 113, 258 Pac. 216 (1927); Downie v. Renton, 167 Wash. 374, 382, 9 Pac. (2d) 372 (1932). 5S4See, e.g., Haas v. Choussard, 17 Tex. 588,590 (1856). SS5Alta Land & Water Co. v. Hancock, 85 Cal. 219, 227-228, 24 Pac. 645 (1890). See also Baker v. Brown, 55 Tex. 377, 382 (l&Sl); Biggs v. Lefflngwell, 62 Tex. Civ. App. 665, 668, 132 S.W. 902 (1910); Hammond v. Johnson, 94 Utah 20, 34, 66 Pac. (2d) 894 (1937). 556Ebell v. Baker, 137 Oreg. 427, 437-438, 299 Pac. 313 (1931). s" Smith v. HallwoodIrr. Co., 67 Cal. App. 777, 782-783, 228 Pac. 373 (1924);Dunnv. Thomas, 69 Nebr. 683, 684, 96 N.W. 143 (1903); Little Walla Walla Irr. Union v. Finis |
