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Show 38 THE RIPARIAN DOCTRINE upon the reasoning that as a riparian right is annexed to the land as part and parcel of it, any claim by the riparian owner which affects his water right necessarily burdens his land.199 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. Whether this completely bars the exercise of his water right, or only partially restricts the diversion and use of the water, depends on the facts. And whether an estoppel brings about an actual severance of the riparian right from the land likewise depends upon the circumstances. Although in the landmark riparian case of Motl v. Boyd200 the opinion by Chief Justice Cureton made sweeping declarations concerning the origin and extent of the riparian right in Texas (for which dicta the case is best known), the actual holding of the court was that the superior riparian right of defendants as against the plaintiff appropriators was denied them, not because it did not exist, but because defendants were estopped to assert it in this case. The basis of estoppel was a "grant, license, or easement"-given verbally by Lee, predecessor in title of defendants, to plaintiffs' predecessors-to construct a dam and ditch on Lee's riparian land, from and by means of which water would be taken to plaintiffs' lands downstream. 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. The same principle was involved in another decision of the Texas Supreme Court in the year following Motl v. Boyd. A written agreement between plaintiff and defendant with respect to the use of riparian land and water rights was extended orally. This contract was held to be one affecting real estate to such an extent as to be within the statute of frauds,201 but it was taken out of the statute by reason of the conduct of the parties. The rule was followed 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.202 199 Wright v. Best, 19 Cal. (2d) 368, 382, 121 Pac. (2d) 702 (1942). See also Fitzstephens v. Watson, 218 Oreg. 185, 344 Pac. 221, 229 (1959). 200Motl v. Boyd, 116 Tex. 82, 128-130, 286 S.W. 458 (1926). 201 Statutes of frauds in the several States provide, with various exceptions, limitations, and qualifications, that no estates in land may be created or conveyed except by instruments in writing signed by the grantor. 202 Texas 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.). |