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Show PRESCRIPTION 371 such possession, with an intention on his part not only to deprive the adverse party of possession but also to oust him from his claimed title.573 (5) The necessary continuity of use is interrupted if the rightful owner diverts the water for his own use during a fraction of the prescriptive period and thus prevents use by the adverse claimant at a time when needed.S74 One interruption during the entire prescriptive period is sufficient to prevent acquisition of title by the adverse user if made under circumstances as to reassert ownership of the water right.575 The California Supreme Court has said, "A single interruption once every five years, under such circumstances as to challenge the right of the adverse claimant, will prevent the acquisition of a title by prescription, for there would then be no period of continuous user for five years." (Five years is the prescriptive period in California.)576 (6) A clandestine entry will not set the statute in motion, because the owner of the land cannot be said to have acquiesced in the wrongful entry or possession; and by the same reasoning, a clandestine interruption will not constitute a tolling of the statute.S77 Therefore, an entry by the injured party by stealth and without the knowledge of the party in possession is not sufficient to break the continuity necessary to establish a right by prescrip- tion.578 The California Supreme Court has said:579 Without further citation of authorities or a critical analysis of those already cited, it is clear that in order to interrupt the running of the statute of limitations, as to flowing 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 to that effect or by conduct so notorious and unquivocal as to imply such notice. In other words, the interruption of the possession must rise in dignity and character to that required to initiate an adverse possession. (7) The acts of interruption may be of various kinds, provided they are effective for the purpose. "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."580 ™Ebell\. Baker, 137 Oreg. 427, 440, 299 Pac. 313 (1931). 574Kohala Sugar Co. v. Wight, 11 Haw. 644, 649 (1899). 57S Wellsville East Field In. Co. v. Lindsay Land & Livestock Co., 104 Utah 448,463, 137 Pac. (2d) 634 (1943); Armstrong v. Payne, 188 Cal. 585, 596, 206 Pac. 638 (1922). 576Armstrong v. Payne, 188 Cal. 585, 596, 206 Pac. 638 (1922). 577Morgan v. Walker, 217 Cal. 607, 617-618, 20 Pac. (2d) 660 (1933); Brattain v. Conn, 50 Oreg. 156, 158, 91 Pac. 458 (1907); Wellsville East Field In. Co. v. Lindsay Land & Livestock Co., 104 Utah 448, 463, 137 Pac. (2d) 634 (1943). S78Armstrong v. Payne, 188 Cal. 585, 596-597, 206 Pac. 638 (1922). 579188 Cal. at 597. SMHammond v. Johnson, 94 Utah 20, 34, 66 Pac. (2d) 894 (1937); actual physical |
