This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Although the user of another's land in a particular way continues for the whole of the prescriptive period, no right is acquired thereby if the user loses its adverse character before the period expires. This it may do by reason of the fact that the possession of the servient tenement becomes united with that of the dominant tenement.46 Or it may occur that the person exercising the user in some way recognizes the right of the owner of the land
Converse, 44 Vt. 158; Crosier v. Brown, 66 W. Va. 273, 66 S. E. 326. But there are in Wimbledon etc. Conservators v. Dixon, 1 Ch. Div. 363 dicta to the contrary.
42. Cheney v. O'brien, 69 Cal. 199. 10 Pac. 479; Gentleman v. Soule. 32 111. 271, 83 Am. Dec. 264; Talbott v. Thorn, 91 Ky.-417, 16 S. W. 88; Salmon v. Martin, 156 Ky. 309, 160 S. W. 1058; Moll v. Hagerbaumer, 98 Neb. 555. 153 N. W. 560; Bolton v. Murphy, 41 Utah, 591, 127 Pac. 335: Waltcn v. Knight, 62 W. Va. 223. 58 S. E. 1025: Warren v. Van Norman, 29 Ont. 84.
43. Shaughnessey v. Leary, 162 Mass. 108, 38 N. E. 197; Baldwin v. Calkins, 10 Wend (N. Y.) 167; Bremer v. Manhattan R. Co..
191 N. Y. 333, 84 N. E. 59
44. Mississippi Mills Co. v. Smith, 69 Miss. 297, 30 Am. St. Rep. 546, 11 So. 26; Matthews v. Stillwater Gas & Electric Light Co., 63 Minn. 493, 65 N. W. 947; Smith v. City of Sedalia, 152 Mo. 283, 48 L. R. A. 711, 53 S. W. 907; Prentice v. Geiger, 74 N. Y. 341; Boynton v. Longley, 19 Nev. 69, 3 Am. St. Rep. 781. 6 Pac. 437;; Mccallum v. Ger-mantown Water Co., 54 Pa. St. 40, 93 Am. Dec. 656; Shearer v. Hutterische Bruder Gemeinde, 28 S. D. 509, 134 N. W. 63.
45. Mcdonnell v. Huffine, 44 Mont. 411, 120 Pac. 792; Bolton v. Murphy. 41 Utah, 591, 127 Pac. 335.
46. Ante, Sec. 524, note 20.
To stop the user,47 as when he asks permission of the latter.48 Whether such a recognition is to be regardea as involved in an offer on the part of the person exercising the user to purchase the right of user would appear to be a question of fact in the particular case.49 Sec. 527. Interruption by landowner. That the owner of the land interposes physical obstacles to the exercise of the user, to an extent sufficient to render it impossible, has been regarded as precluding the acquisition of a prescriptive right.50 So one cannot acquire a right of way by prescription if the landowner places a fence or other structure so as to prevent passage,51 and it has been decided that no right to divert water accrues by lapse of time if the landowner prevents, even though only temporarily, the diversion of water.52 Such action on the part of the landowner necessarily stops the user, the continuity of which is essential to the application of the doctrine of prescrip47. Sumner v. Tileston, 7 Pick. (Mass.) 198; Colvin v. Burnet, 17 Wend. (N. Y.) 569; Perrin v. Garfield, 37 Vt. 304; Wasatch Irrigation Co. v. Fulton, 23 Utah, 466, 65 Pac. 205; Strong v. Baldwin, 137 Cal. 432, 70 Pac. 288.
48. Weed v. Keenan, 60 Vt. 74, 6 Am. St. Rep. 93, 13 Atl. 804.
49. See Watkins v. Peck, 13 N. H. 360, 40 Am. Dec. 156; Kana v. Bolton, 36 N. J. Eq. 21.
50. In Rollins v. Blackden, 112 Me. 459, Ann Oas. 1917A 875, 92 Atl. 521, it was held that the prescriptive user of the water from a well on another's land was interrupted by the lat-ter's grant to a third person of a right to take water. Why this should be so is not explained.
51. Pollard v. Rebman, 162
Cal. 633, 124 Pac. 235; Sears v. Hayt, 37 Conn. 406; Barker v. Clark, 4 N. H. 380, 17 Am. Dec. 428; Brayden v. New York, N. H. & H. R. Co., 172 Mass. 225. 51 N. E. 1081; Jackson v. Cody, (Tex. Ch.), 63 S. W. 302; Cunningham v. San Saba County, 11 Tex. Civ. App. 557, 32 S. W. 928, 33 S. W. 892; Morris v. Blunt, 49 Utah, 243, 161 Pac. 1127. See Wooldridge v. Coughlin, 46 W. Va. 345, 33 S. W. 233.
52. Bree v. Wheeler, 129 Cal. 145, 61 Pac. 782; Authors v. Bryant, 22 Nev. 242, 38 Pac. 439; Wasatch Irrigation Co. v. Fulton, 23 Utah, 466, 65 Pac. 205; Smith v. North Canyon Water Co., 16 Utah, 194, 52 Pac. 283. But see, as to the character of the interruption necessary. Gardner v. Wright, 49 Ore. 609, 91 Pac. 286.
Tion, and even a merely temporary stoppage or suspension, resulting from the act of the landowner, has a legal effect different from a like stoppage or suspension which is purely voluntary, in as much as it indicates a lack of that acquiescence by the landowner in the user, on which acquiescence alone the presumption of a grant can be based.52a It has been said, however, that the occasional interruption of passage across the land by the storage thereon by the landowner of lumber and carriages does not prevent the acquisition of a prescriptive right of passage, if such interruption were merely casual, or accompanied by acts recognizing a right of passage.53
It has been decided that the interruption by the landowner of the user, if secret and by stealth, as when water appliances or structures are secretly destroyed by him, will not prevent the acquisition of the prescriptive right.54 This is based on the analogy of the law of adverse possession of land, by which a secret re-entry does not prevent the running of the statute. The analogy is, however, not entirely satisfactory. It the owner of land re-enters on the land by stealth, the possession of the wrongdoer is regarded as continuing, while the mere user of another's land cannot well be regarded as continuing, when it has been actually stopped by the landowner, whether this was done secretly or openly. Moreover the interruption of the user, although originally clandestine, must eventually become known to the other party, except in the rare instance when the landowner voluntarily repairs the injury which he has caused, while the re-entry of the landowner on land in another's wrongful possession may, if temporary merely, continue unknown to the latter.
It has been said that an interruption of the user by a hird person is immaterial.54a This is presumably so.
52a. See editorial note 20 Harv. Law Rev. 317.
53. Plimpton v. Converse, 42
Vt. 712. And see Webster v.
Lowell, 142 Mass. 324, 8 N. E.
54. Brattain v. Conn, 50 Ore 156. 91 Pac. 4
54a. Gardner v Wright, 49 Ore. 609, 91 Pac. 286; Dorntree v.
That is, such interruption does not serve to indicate any lack of acquiescence in the user on the part of the landowner, and does not, for that reason, prevent the establishment of a right by prescription. It is conceivable, however, that the interruption by a third person may be so prolonged as to deprive the user of the element of continuity, or that after an interruption has occurred by reason of a third person's destruction of appliances, no attempt is made to replace the appliances so as to continue the user.