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Show ESTOPPEL 429 settled that when the State makes itself a party to an action in its proprietary capacity, it is subject to the law of estoppel, as are other parties litigant; the situation being different from situations in which the State is exercising its power of sovereignty.903 (b) Colorado. In an action by a reservoir owner to enjoin the State Engineer's ruling on water rights, plaintiff asserted, in effect, that the State Engineer was estopped to administer plaintiffs decrees pursuant to the questioned ruling because for many years plaintiff stored quantities of water exceeding the decreed capacity of the reservoir and that such storage was sanctioned, permitted, or authorized by other State Engineers and water officials. If this were done, the supreme court held, it could not alter or modify plaintiffs decreed rights. One of the trial court's specific findings was "That the doctrine of estoppel cannot be invoked against the state engineer acting in his public capacity." To this the Colorado Supreme Court agreed, holding that "The doctrine of estoppel cannot be invoked against a government agency acting in its public capacity."904 (c) New Mexico. In a 1957 case the State of New Mexico obtained a judgment against a person who allowed water from an artesian well to flow 24 hours per day over grazing land, without a constructed irrigation system, and who was held to have lost his appropriate right by nonbeneficial user for more than the statutory period because of waste of water. The defendant contended that the action against him was barred on the ground of estoppel by reason of laches on the part of the artesian well supervisor, who had knowledge of defendant's method of watering his grass and livestock. The State contended that estoppel and laches do not run against it to prevent its acting in a governmental capacity. The supreme court said, in part:905 To govern themselves, the people act through their instru- mentality which we call the State of New Mexico. The State of New Mexico functions through persons who are for the time being its officers. The failure of any one of these persons to enforce any law may never estop the people to enforce that law either then or at any future time. * * * 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. In a decision rendered by the New Mexico Supreme Court later in the same year-an action brought by the State to enjoin water diversion-injunction was refused on the merits. Pointing out that much of the time and space in the 903State v. Bryan, 210 S.W. (2d) 455, 464 (Tex. Civ. App. 1948, error refused n.r.e.). See Annot, 1 A.L.R. (2d) 338 (1948), L.C.S.§ 6 (1971). '"Orchard City In. Dist. v. Whitten 146 Colo. 127, 361 Pac. (2d) 130, 133, 135 (1961). '"State ex rel. Erickson v. McLean, 62 N. Mex. 264, 273-274, 308 Pac. (2d) 983 (1957). |