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Show ESTOPPEL 443 respondents are, and should be, estopped by laches from question- ing appellant's title. However, in a 1966 case, the Idaho Supreme Court indicated that it is not considered adverse possession by a junior appropriator when it is the duty of the prior appropriator to allow the junior appropriator's use of the water when the prior appropriator has no immediate need; thus, since such use is not adverse, the prior appropriator could not have lost his prior right by laches or acquiescence. The following statements were made by the Idaho Supreme Court in a 1969 973 case: Appellants assert that since the irrigation district has functioned as a mutual ditch company and delivered water outside the boundaries of the district for many years, the district is therefore estopped by laches from discontinuing such deliveries. Appellants rely on Johnson v. Strong Arm Reservoir Irrigation District, 82 Idaho 478, 356 P.2d 67 (1960), and Hillcrest Irrigation District v. Nampa and Meridian Irrigation District, 57 Idaho 403, 66 P.2d 115 (1937) as authorities for this proposition. However in both those cases the period of time involved during which the irrigation district functioned as a mutual ditch company was over 20 years. In the case at bar the appellants for three and one-half years previous to 1959 made use of water which ran down the Arco Canal which was diverted from the Big Lost River. These waters were flood waters and were available to appellants as such and not dependent upon any decrees or water rights. The doctrine of estoppel does not apply to use of surplus or waste water. Jensen v. Boise-Kuna Irr. Dist, [75 Idaho 133, 269 Pac. (2d) 755 (1954)]. Also no appropriator can compel any other appropriator to continue the waste of water so that he can benefit. Application of Boyer, 73 Idaho 152, 248 P.2d 540 (1952). We therefore cannot agree with the appellants' contention that the short three and one-half year period during which appellants made use of these run-off waters entitled them to assert an estoppel by laches. In a 1957 suit brought by the State of New Mexico, defendant claimed that the action against him was barred on the ground of estoppel by reason of laches on the part of the local State official, who had knowledge of his grass and livestock watering methods. The State contended that estoppel and laches do not run against the State to prevent its acting in a governmental capacity, and the supreme court agreed. The court concluded:974 "The doctrine of estoppel by reason of laches does not aid the defendant. Public policy forbids the application of the doctrine of estoppel to a sovereign state where public waters are involved. The general rule is, that neglect or omission of public officers to do their duty cannot work an estoppel against the state." 972Martiny v. Wells, 91 Idaho 215, 217-219, 419 Pac. (2d) 470, 473 (1966). 973 Jdnes v. Big Lost River Irr. Dist., 93 Idaho 227, 459 Pac. (2d) 1009, 1012 (1969). 974State ex rel. Erickson v. McLean, 62 N. Mex. 264, 273-274, 308 Pac. (2d) 983 (1957). |