(dissenting) :
I dissent and would affirm the findings and the decree of the trial court.
The pivotal problem is whether there is a prescriptive easement in the plaintiff to continue to maintain the drainage ditch which it is not subject to question has been in use for more than twenty years. The plaintiff’s position is that the use has been open, notorious, continuous and adverse under a claim of right so that the prescriptive easement is established.1 Defendants contend to the contrary, and that the use *240has been with their permission so that no such prescriptive right has come into being. The trial court found in favor of the plaintiff.
Paragraph 4 of the findings states:
That the use of said drain by the plaintiff after the construction of said drain' has continuously, from the begin-ing of said use, caused damage by way of erosion over and above the erosion created by the owners thereof or their predecessors in interest and others for their own use. That said use by the plaintiff was not permissive and said use by plaintiff did interfere with and cause damage to the defendants right of way, during all of said time. (Emphasis added.)
It should be the policy of the law to safeguard the peace and good order of society by leaving any long established essential and practical activities in status quo. Consonant therewith when a party has shown that such use as the one here in question has been exercised peaceably and without interference for a period of twenty years, it is presumed that the use is done as a matter of right2 and adverse to the owner of the land or anyone who would claim to the contrary,3 and his right to do so cannot be disturbed.4
The testimony upon which the defendants must necessarily rely in showing that the use was permissive and therefore not adverse to them is commendably set forth in the main opinion. However, in my view, that testimony does not defeat the finding (paragraph 4 quoted above) of the trial court. Several observations are pertinent thereon: First, it is the prerogative of the trial court to judge the credibility of the evidence and to determine the facts. He is not required to believe the testimony of witnesses, particularly where that testimony may be affected by self-interest.5
Second, he is permitted to draw reasonable inferences from facts shown.
While it is true that the use must have been adverse) it is not necessary that there be shown that there was any opposition by way of the use of force or even verbal opposition. What is necessary is that the use must have been such that it is plainly apparent that the claimant is using the ease*241ment in such a manner that the servient owner either knows or should know that the user claims the right to do so and that the use continues to be open, notorious, continuous and adverse for more than twenty-year prescriptive period.6 When such a use has continued for the twenty-year prescriptive period, the party so ad-versed should not be permitted to defeat the acquired right by simply saying “Oh well — after all, I didn’t really care — until now.” The avowal of such an attitude seems a little difficult to reconcile with the controversy which now exists, and with Westover’s filling the drain.
It is my opinion that the facts shown, including that the use was causing damage to the defendants “during all of said time,” together with the fair and reasonable inferences to be drawn therefrom, provide a basis for sustaining the trial court’s determination that there was the required adverse use, so that the plaintiff should not now be denied that right.
The necessity for some means of drainage of the lands in question is so obvious as to require no comment beyond statement of the fact. It is further my impression that the trial court was well advised in providing in the concluding paragraph of the decree that it is:
ORDERED, ADJUDGED AND DECREED that this court does hereby retain jurisdiction for a further hearing, if it becomes necessary, for the purpose of fixing and determining the equitable share of cost of operating, maintaining, improving and expanding this said drainage system so as to accommodate the flow of water for each and all of the users thereof.
From what I have said above it appears to me that if the proper deference is allowed for the advantaged position of the trial judge, and his recognized prerogatives, there is nothing shown sufficiently persuasive to overturn the findings and decree.
ELLETT, J., concurs in the dissenting opinion of CROCKETT, J.. See Richins v. Struhs, footnote 2 of the main opinion.
. See Thompson on Real Property, Vol. 1, p. 678 (Perm.Ed.1939).
. See Zollinger v. Frank, 110 Utah 514, 175 P.2d 714, 170 A.L.R. 770 and authorities therein cited; Thompson on Real Property, Vol. 1, Sec. 394 (Perm.Ed.1939).
. That the time for establishment of a right of way by prescription is 20 years, see Cassity v. Castagno, 10 Utah 2d 16, 347 P.2d 834.
. See Jensen v. Logan City, 96 Utah 522, 88 P.2d 459; McGowan v. Denver & R. G. W. R. R. Co., 121 Utah 587, 244 P.2d 628; Kelly v. Jones, 290 Ill. 375, 125 N.E. 334, 8 A.L.R. 796; 32A C.J.S. Evidence § 1038, p. 727 (1964); 20 Am. Jur. 1031.
. Richins v. Struhs, footnote 2 of the main opinion.