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Show ESTOPPEL 435 benefit of an estoppel must, by the words, conduct, or silence of the first party, be induced or led to do what he would not otherwise do.936 He must have acted thereon to his prejudice;937 or "the person sought to be estopped must have failed to do some act which it was within his power to do and the person claiming the estoppel must have relied on such failure to such an extent and for such a period that the subsequent doing of such act would cause him injury."938 In one of its important estoppel decisions the Utah Supreme Court observed:939 It has been repeatedly held that a person by accepting benefits from a contract may be estopped from questioning its existence, validity, and effect. Furthermore, where a person with knowledge of the facts induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction or will offer no opposition, and the other one in reliance upon such belief alters his position, such person is estopped from repudiating the transaction to the other's prejudice. Measure of Right In holding that one is not called upon to object to a diversion that does not reduce his own water supply, and that there must be some degree of turpitude in the conduct of a party in order to raise an estoppel, the California Supreme Court stated:940 It is to be noted in this immediate connection that the claim of estoppel which the upper appropriator of the waters of a stream undertakes to assert against a lower claimant thereto, based upon the latter's acquiescence, must be founded not upon the amplitude of the former's claim as set forth in his recorded appropriation of such waters, nor by the carrying capacity of his ditches or flumes, but upon the actual diversion and use of said waters and only to the extent thereof. Some Other Facets Procedure Estoppel must be pleaded.941 In a 1908 case the South Dakota Supreme Court said:942 936 Verdugo Canyon Water Co. v. Verdugo, 152 Cal. 655, 673-674, 684, 93 Pac. 1021 (1908). 93''Irrigated Valleys Land Co. of Cal. v. Altman, 57 Cal. App. 413, 428, 207 Pac. 401 (1922). 93*San Joaquin & Kings River Canal & In. Co. v. Worswick, 187 Cal. 674, 693, 203 Pac. 999(1922). ^Tanner v.Provo Res. Co., 76 Utah 335, 344-345, 289 Pac. 151 (1930). 940San Diego v. Cuyamaca Water Co., 209 Cal. 105, 142-143, 287 Pac. 475 (1930). 941 Sturgeon v. Brooks, 73 Wyo. 436, 461-462, 281 Pac. (2d) 675 (1955). 943Edgemont Improvement Co. v. N.S. Tubbs Sheep Co., 22 S. Dak. 142, 145-146, 115 N.W. 113t (1908). |