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Show 440 LOSS OF WATER RIGHTS IN WATERCOURSES uniformly unsuccessful. The estoppel argued for here is that the parties now seeking to assert their rights ought not to be allowed to do so, because they knew that the defendants were building up their improvements, and relying on the use of the water to maintain them. An all-sufficient answer to this is that the defendants knew also that the complainant and intervener were relying upon the same water to maintain their improvements already made, and to carry on their farming operations already begun. Under this view of it, the one side is as much estopped as the other. The Washington Supreme Court could find no element of estoppel where "it is plain from the record that the respondents have asserted the same right to the use of the water as is asserted by appellants * * * ,"959 Watercourse Made Artificially In chapter 3, under "Collateral Questions Respecting Watercourses-Water- course Originally Made Artificially," important factors including "Estoppel" are discussed. With respect to this factor the Washington Supreme Court declared in 1909:960 These authorities maintain the principle that the proprietor of a stream, by diverting it into an artificial channel, and suffering it to remain in its changed condition for a period of time exceeding the statute of limitations, is estopped, as against a person making a beneficial use of the water, from returning it to its natural channel to that person's loss and injury; that the user does not have to show a prescriptive right in himself, or a use by himself for the period of the statute of limitations in order to prevent its return; all he needs to show is that the person diverting it has suffered it to remain in its changed state for that period and that he has made a beneficial use of the water relying upon the permanency of the change. Statutory Prohibition The Kansas water rights statute, as amended in 1957, provides that "no water rights of any kind may be acquired hereafter solely * * * by estop- pel."961 Estoppel and Laches Distinguished Characteristics of Laches Defined.-The essential ingredient of laches is inexcusable delay. "Laches means negligence in the assertion of a right, and exists where there has been a 959 Wilson y.Angelo, 176 Wash. 157, 163, 28 Pac. (2d) 276 (1934). 960Hollett v. Davis, 54 Wash. 326, 332-333, 103 Pac. 423 (1909). This case is discussed in chapter 3 at note 394. 961 JCans. Stat. Ann § 82a-705 (1969). |