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Show ESTOPPEL 439 downstream.955 In another case, wherein a written agreement with respect to the use of riparian land and water rights was extended orally, it was held that where one party to an oral contract has, in reliance thereon, so far performed his part of the agreement that it would be perpetrating a fraud on him to allow the other party to repudiate the contract and set up the statute of frauds in justification thereof, equity will regard the case as being removed from the operation of the statute and will enforce the contract.956 Even if a grant to a nonriparian is verbal or oral and usual conveyancing requirements have not been met, under some circumstances a riparian owner's conduct may be such as to estop him from asserting his riparian water rights in derogation of the claims of others. Questions as to whether this completely bars or only partially restricts his diversion and use of water, or whether it results in an actual severance of the riparian right from the land, depend on the circumstances of the particular case. Mutual Estoppel In an Idaho case, it was stated in the syllabus by the court:957 Where prior and subsequent locators of the waters of a stream have misunderstandings and differences with reference to the right to divert the waters of a stream and convey them to distant points for use, and they reach an agreement and understanding whereby each shall be permitted to construct his diverting works and ditches, and in reliance thereon they do construct such works and expend money thereon, each will therefore be estopped from denying the right of the other to divert and use the waters in accordance with such agreement or understanding. In a controversy in the Federal court for the District of Montana between claimants of water rights on both sides of the state line separating Montana and Wyoming the district court said:958 It is safe to say that few cases of this character have been tried where the defense of estoppel has not been interposed with result 955Motl v. Boyd, 116 Tex. 82, 128-130, 286 S.W. 458 (1926). No compensation was paid or asked for, but in reliance on this verbal consent, works were constructed and put to use at considerable expense and water was taken by means thereof for 35 years without protest by the riparian owners. 9S6Texas Co. v. Burkett, 117 Tex. 16, 30-33, 296 S.W. 273 (1927); temporary estoppel to revoke a revocable permission or license, under the facts, Risien v. Brown, 73 Tex. 135, 142-143, 10 S.W. 661 (1889). See Fort Quitman Land Co. v.Mier, 211 S.W. (2d) 340, 343 (Tex. Civ. App. 1948, error refused n.r.e.). Other cases pertaining to similar or related matters are discussed in the preceding subtopic, "Executed Parol License." 951 Sounders v. Robison, 14 Idaho 770, 95 Pac. 1057 (1908). 95% Morris v. Bean, 146 Fed. 423, 434 (C.C.D. Mont. 1906), affirmed, 159 Fed. 651 (9th Cir. 1908), 221 U.S. 485 (1911). |