concurring in part and dissenting in part.
I concur with the majority’s analysis regarding the claim for the establishment of an easement for water but I disagree with its analysis that defendants are not entitled to a prescriptive road easement, because it leads to a departure from the common law of prescriptive easements.
The majority holds that defendants have not proven by clear and convincing evidence that they used the road in an uninterrupted adverse manner for a period of ten years. The majority is wrong factually. Defendants’ adverse use began on January 28, 1982. Unless their use was effectively interrupted before January 28, 1992, they have met the ten-year period of use requirement. In November 1991, plaintiff Rambo erected a gate across the road because “[defendants’] cattle were trespassing on my property daily.” Plaintiff Garrett testified, “[the reason] Colleen and I both put the gates was not to stop the Muellers per se * * * [rather] [i]t was to keep their cows from coming over on the property, because they were constantly over there every single day.” After the gates were installed, it is uncontradicted that defendants continued to use the road. Mueller testified, “I just opened them and went through them until they locked them.” In Kondor v. Prose, 50 Or App 55, 60, 622 P2d 741 (1981), we held that the erection of a gate to keep the defendants’ cattle out did not interrupt the adverse use of the road when there was no evidence that the users discontinued their use because of the gate. The same rule applies here.
On January 6, 1992, there was a confrontation between Garrett and James Mueller. Garrett testified that *343he told Mueller not to use the road anymore. Sometime thereafter, plaintiffs locked the gates. It is uncontradicted that after the gates were locked, Mueller cut the locks and continued to use the road. Mueller testified that “I continued using that road until they started blocking it off completely with their automobiles.” Rambo confirmed Mueller’s testimony: “I know [Mueller] used [the road] at least twice after * * * he cut that lock off.”
Plaintiffs were finally able to stop defendants’ use by blocking the road with their automobiles. The date when plaintiffs finally interrupted the adverse use of the road by defendants with their automobiles is ascertainable with relative certainty. It occurred around the time that Mueller contacted the sheriffs office or approximately February 23, 1992. Under those circumstances, the ten-year period expired and the prescriptive easement vested in defendants before plaintiffs were able to interrupt the adverse use.
Plaintiffs can only prevail if the ineffectual locking of the gates in early January sufficed as a matter of law to interrupt the prescriptive period. What rule of law is applied to the facts of this case is crucial to its outcome. Under the majority’s view of the law, defendants lose because, two or three weeks before the ten-year period was to expire, plaintiffs locked the gates. It is immaterial, according to the majority, that Mueller thereafter broke the locks and continued to use the road. The issue presented by these facts is of first impression in Oregon.
In Thompson v. Schuh, 286 Or 201, 593 P2d 1138 (1979), the plaintiffs asserted in oral argument that when the defendant installed a locked chained gate, it didn’t block their use so as to interrupt the prescriptive period. The court said:
“We need not decide this issue as there is no evidence that [plaintiff] did go around any gates, his testimony being, rather, that there were no gates until 1975. Also, while it is true that ineffective protests do not succeed in interrupting the prescriptive period, if the servient owner does some act that would be legally actionable if an easement did in fact *344exist, that perhaps may be sufficient to break the prescriptive period.” Id. at 209 n 5 (emphasis supplied; citations omitted).
The reliance of the majority on the holding in Thompson v. Scott, 270 Or 542, 528 P2d 509 (1974), for the proposition that the Supreme Court earlier had “suggested the answer to [the] question” stretches credulity. 144 Or App at 338. In Thompson v. Scott, the issue was whether an initially permitted use had been changed into an adverse use. The issue of what act caused a cessation of the period of time for which the prescriptive use was claimed was not in issue nor is it analyzed in the opinion. The opinion does mention in the statement of facts that the plaintiff broke the lock of the gate erected by the defendants. Then, the court notes later in the opinion that the use before 1960 was permissive or irregular. The court then summarizes the issue: “Thus, to make out their case plaintiffs must establish a continuous use for ten years sometime within the period from 1960 to 1972, when defendants interrupted the use by erecting the gate.” 270 Or at 547. Thereafter, there is no mention in the opinion of any discussion about whether it was the erection of the gate or the breaking of the lock that caused the cessation of the use because the use was not deemed prescriptive. Interestingly, the Supreme Court still considered the issue to be undecided five years later when it decided Thompson v. Schuh.
Because we are now faced with the issue that was left undecided in Thompson v. Schuh, it is important to remember what is involved in the acquisition of a prescriptive right. In general, the very nature of prescriptive use connotes an element of hostility by the user against the servient estate that says in effect, “I intend to use the road despite the ownership of the servient owner.” That hostile intent must continue uninterrupted throughout the prescriptive period. The Restatement of Property defines an uninterrupted adverse use:
“(2) An adverse use is uninterrupted when those against whom the use is adverse do not
*345“(a) bring and pursue to judgment legal proceedings in which the use is determined to be without legal justification, or
“(b) cause a cessation of the use without the aid of legal proceedings.” 5 Restatement of Property (Servitudes) § 459 (1944).
In comment c to section 459, the Restatement provides:
“An act by the possessor of land intended to cause a cessation of use does not produce an interruption of use unless a cessation of use, temporarily at least, results. The success of the act in causing a cessation of use rather than its form or manner determines its effect as an interruption.”
In this case, there was no cessation of adverse use by defendants until after the ten-year period had lapsed within the meaning of the Restatement.
The majoritys reliance on Construction Co. v. Ditch Co., 41 Or 209, 220, 69 P 455 (1902), for the proposition that any act that will amount to a legally cognizable disturbance of a property interest suffices to act as a cessation of use is misplaced. In that case, the issue was whether a purported interruption of the continuity of the diversion of irrigation water sufficed to defeat the user’s claim to the water. The interruption, according to the court, amounted to nothing more than the mere denial of the user’s right to use the water. In holding that there had been no effective cessation of use, the court stated:
“Mere denials of the right, complaints, remonstrances, or prohibitions of user, unaccompanied by any act which in the law would amount to a disturbance, and be actionable as such, will not prevent the acquisition of a right by prescription.” Id. (Citations omitted.)
The facts in this case differ significantly. Here, there was an ineffectual attempt to interrupt the use followed by a successful effort to continue the prescriptive use. The holding in Construction Co. that a mere denial unaccompanied by an act that gives rise to a legal action will not prevent the acquisition of a prescriptive right does not translate to a pronouncement that an ineffectual interruption that could give *346rise to a legal action suffices to operate as a cessation of prescriptive rights. At most, the above language illustrates why-something more than a mere denial of a prescriptive right is required to constitute a cessation of use.
Several other jurisdictions have wrestled with the issue that is before us and have arrived at conclusions consistent with the Restatement. One of the most interesting discussions appears in Concerned Citizens v. State ex rel Rhodes, 329 NC 37,404 SE2d 677 (1991). In that case, a citizens’ association brought a declaratory judgment action against a landowner to obtain public access to a beach. The court held that the public’s use of the road was sufficiently continuous and uninterrupted for the prescriptive period to establish the easement. Through that period, the landowner had endeavored unsuccessfully to block access by posting as many as 50 “no trespassing” signs, employing a telephone pole barrier, a padlocked cable, locked gates, barricades and guards. The property owner’s frustration at the failure of his efforts to stop public use was expressed by testimony of his agent at trial: “[H]ave you got to set a tank up, a machine gun, or what[?]’’7c7 at 51, 404 SE2d at 686.
The court held that effectively to defeat a prescriptive right, an extra-judicial interruption of the use must be accompanied by some act of the owner that “prevents the use of the easement.” Id. at 52, 404 SE2d at 686. The evidence of the removal or circumvention of the barriers to access to the property is simply further evidence of hostility under the law of prescriptive easements and does not support a conclusion that the owner successfully interrupted the adverse use. Other jurisdictions have held similarly. See, e.g., Trustees of ForestGreen Estates, 4th Addition v. Minton, 510 SW2d 800, 803 (Mo Ct App 1974); and Guerra v. Packard, 236 Cal App 2d 272, 46 Cal Rptr 25 (1965).
Not only is the majority’s holding contrary to the Restatement and the holdings of these other courts, but also it switches the focus of the law from the mind-set of the prescriptive user to that of the servient owner and blurs what had previously been a commonly understood principle of the common law of prescriptive easements. The common-law requirement of an open, hostile, actual, continuous use refers *347to the attitude of the mind of the prescriptive user. Arrien v. Levanger, 263 Or 363, 369, 502 P2d 573 (1972). Assuming that that initial requirement is met, all that need occur to establish the right is the expiration of the prescribed time period without an actual cessation of use. Under the majority’s ruling, the common law is changed because the focus is now on what the servient owner intends. Regardless of the continuation of hostile use by the prescriptive user, the prescriptive right is lost because of an ineffectual interruption by the servient owner. Under the majority’s precedent, a mere entry on the easement, the posting of signs on the property or other minimal interference with property rights that give rise to a legal action will suffice to constitute a disturbance of the acquisition of possessory rights that arise from the prescriptive use. That has never been the common law and should not become the law of this state. The requirement that there be a cessation of use in order to interrupt a prescriptive right provides a clarity in the law that constitutes a clear demarcation of what a prescriptive user must do to preserve the right and what a servient owner must do to interrupt it.
The majority worries that following the Restatement rule will serve to engender violent confrontations. To the contrary, the adherence to the law of the Restatement clarifies that the only sure way to interrupt a period of prescriptive use is to seek judicial intervention. Otherwise, servient owners, to their peril, are left to self-help remedies which later may prove ineffective. Had plaintiffs sought judicial recourse instead of the futile effort of locking the gates, they would not be here today. In sum, the common law requiring a cessation of use is well founded in the policy of motivating Oregon citizens to seek judicial help, a policy worth keeping and promoting.