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Show 428 LOSS OF WATER RIGHTS IN WATERCOURSES Parties Commonly private parties.- Litigated cases in which questions of estoppel arise with respect to claims of rights to the use of water commonly involve private parties-individuals and private corporations or other organizations. Estoppel ordinarily has not been invoked against public entities. Following, however, are some decisions concerning estoppel as against public entities. Some decisions regarding public entities.-(I) Municipal corporation. In a case in which the pueblo rights of the City of San Diego were first litigated and established, the California Supreme Court held that the position of public trust which a municipal corporation occupies in the handling of water supplies for the needs of its inhabitants controls the question of estoppel against such municipality. Even if it were to be conceded that a right based upon estoppel could arise by virtue of mere acquiescence in its assertion as between private persons, the supreme court was "satisfied that no such claim of right could come into being as against a municipal corporation, founded upon its mere acquiescence or that if its officials in the diversion by any number of upper appropriators, or even of upper riparian owners of the waters of a stream, to the use of the waters of which such public or municipal corporation was entitled as a portion of its public rights and properties held in perpetual trust for public use."899 (2) Irrigation district. The Idaho Supreme Court held that water owned by an irrigation district and dedicated to the irrigation of lands within it could not be supplied to lands outside its boundaries so long as needed within it; that a contract purporting to impose such an obligation on the district is ultra vires and void. Nor could it be made the basis of estoppel against the district. "Otherwise, the will and purpose of the legislature, and the public policy established by its dedication of such water to the lands within the district, could be defeated by ill-advised contracts of the directors. * * * Estoppel cannot be invoked in aid of such a contract."900 (3) The State, (a) Texas. According to the Texas Supreme Court, mistakes on the part of public officials in giving tentative opinions following preliminary investigations do not estop the State nor deprive it of its property. The failure of public officers to perform their duties will not work an estoppel against the State.901 The Austin Court of Civil Appeals stated subsequently that the State is not estopped nor its title to land adversely affected by the dereliction or failure to act of its officers.902 More recently, however, this court declared it to be well 899San Diego v. Cuyamaca Water Co., 209 Cal. 105, 143, 287 Pac. 475 (1930). See also Los Angeles v. Glendale, 23 Cal. (2d) 68, 142 Pac. (2d) 289, 296 (1943). 900Jensen v. Boise-Kuna In. Dist., 75 Idaho 133, 140-142, 269 Pac (2d) 755 (1954). 901 Weatherly v. Jackson, 123 Tex. 213, 225, 71 S.W. (2d) 259 (1934). 902HimMt Oiid Refining Co. v. State, 162 S.W. (2d) 119, 134 (Tex. Civ. App. 1942, error refused). |