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Show PRESCRIPTION 365 (3) In a 1963 decision, the Montana Supreme Court included in its opinion several quotations from authorities, among which are the following:544 "While a permissive possession may subsequently become hostile * * * to make it so there must be a repudiation of the permissive possession and of the recognition of ownership implicit therein, and the repudiation must be brought home to the owner by actual notice, or at least by acts of hostility so manifest and notorious that actual notice must be presumed. * * * " * * * * " 'The law is very rigid with the respect to the fact that a use permissive in the beginning can be changed into one which is hostile and adverse only by the most unequivocal conduct on the part of the user. The rule is that the evidence of adverse possession must be positive, must be strictly construed against the person claiming a prescriptive right, and that every reasonable intendment should be made in favor of the true owner.' " Exclusive use In a very early case, the California Supreme Court acknowledged that "The general and established doctrine is that an exclusive and uninterrupted enjoyment of water, in any particular way, for a period corresponding to the time limited by statute within which an action must be commenced for the recovery of the property or of the assumed right held and enjoyed adversely, becomes an adverse enjoyment sufficient to raise a presumption of title as against a right in any other person which might have been, but was not asserted." [Emphasis added.]S4S Exclusion of rightful owner by adverse claimant.-In order to bar the claim of a prior appropriator to the use of water appropriated by him on the ground of continuous adverse use by a junior appropriator, the former must be excluded from such use by the latter; the adverse use must be made at a time when the rightful holders of title actually need the water, and it must deprive them-exclude them-of the use at such times.546 Claim of exclusive right.- Adverse use of water, to the exclusion of the rightful owner, must be made "under a claim of exclusive right;" the possession 54*Drew v. Burgraff, 141 Mont. 405, 378 Pac. (2d) 232, 234 (1963), quoting from Kelley v. Grainey, 113 Mont. 520, 129 Pac. (2d) 619 (1942), and Price v. Western Life Ins. Co., 115 Mont. 509, 146 Pac. (2d) 165 (1944). 545American Co. v. Bradford, 27 Cal. 360, 366 (1865); accord, Cox v. Clough, 70 Cal. 345, 347, 11 Pac. 732 (1886); Kuhlmann v. Platte Valley In. Dist., 166 Nebr. 493, 512, 89 N.W. (2d) 768 (1958); Watkins Land Co. v. Clements, 98 Tex. 578, 584-585, 86 S.W. 733 (1905). 546Brossardv. Morgan, 7 Idaho 215, 218-219, 61 Pac. 1031 (1900); Head v. Merrick, 69 Idaho 106, 108, 203 Pac. (2d) 608 (1949); Bishop v. Kala, 7 Haw. 590, 593 (1889); Stearns v. Benedick, 126 Mont. 272, 277-278, 247 Pac. (2d) 656, 659 (1952); Malnati v. Ramstead, 50 Wash. (2d) 105, 107-108, 309 Pac. (2d) 754 (1957). |