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Show 432 LOSS OF WATER RIGHTS IN WATERCOURSES Failure to object to the diversion of water by another, when there is no infringement of one's rights and when he is not called upon to object and in fact has no right to object, does not estop him from subsequently asserting his right.920 And so mere silence will not work an estoppel, except where the party against whom the estoppel is invoked has stood by and has seen the other party infringing his rights, the circumstances being such that he was under an obligation to speak.921 Inequitable conduct. -Throughout the foregoing statement of elements of estoppel with reference to the party who is or is not estopped, as the case may be, there runs the expressed or implied theme-the injustice of allowing such party to hold his water right intact despite his inequitable conduct, active or passive, in misleading the other party concerning such right to the serious injury of the latter. In a 1957 decision, the Arizona Supreme Court stated:922 Estoppel arises where one with knowledge of the facts has acted in a particular manner so that he ought not to be allowed to assert a position inconsistent with his former acts to the prejudice of others who have relied thereon. * * * Essentially the doctrine of estoppel requires of a party consistency of conduct when incon- sistency would work substantial injury to another. And the Nebraska Supreme Court has said:923 "[W]hen a person knowing his rights takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable and operates as an estoppel against the assertion of the right." A striking illustration of estoppel based upon inequitable conduct appears in the circumstances of a Utah Case. Because of his extensive knowledge of a stream system and water rights therein, plaintiff was employed by a company-defendant in this case-which was preparing for an adjudication of all existing water rights. One of plaintiffs duties was to advise the company as to any adverse claims of which he knew, but he remained silent as to his own adverse claim. In addition he appeared as a witness, rendered much advice to 284, 86 Pac. 361 (1906); Oakes v. Dickson, 225 Oreg. 95, 357 Pac. (2d) 385, 387 (1960). "Silence can never be the basis of an estoppel unless there is a duty to speak." Willadsen v. Crawford, 75 S. Dak. 161, 165, 60 N.W. (2d) 692 (1953). 920San Diego v. Cuyamaca Water Co., 209 Cal. 105, 142, 287 Pac. 475 (1930); Wimerv. Simons, 27 Oreg. 1, 21-22, 39 Pac. 6 (1895). 921 Hall v. Webb, 66 Cal. App. 416, 425-426, 226 Pac. 403 (1924); Carson v. Hayes, 39 Oreg. 97, 107, 65 Pac. 814 (1901). 922Tucson v. Koerber, 82 Ariz. 347, 356-357, 313 Pac. (2d) 411 (1957). 923Sfate v. Nielsen, 163 Nebr. 372, 388-389, 79 N.W. (2d) 721 (1956). For other statements concerning inequitable conduct and consequences, see Moore v. Sherman, 52 Mont. 542, 547, 159 Pac. 966 (1916);Sherlock v. Greaves, 106 Mont. 206, 217, 76 Pac. (2d) 87 (1938); Smyth v. Neal, 31 Oreg. 105, 112-113, 49 Pac. 850 (1897); Tanner v. Provo Res. Co., 76 Utah 335, 344-345, 289 Pac. 151 (1930). |
