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Show ESTOPPEL 441 delay of such duration as to render enforcement of the asserted right inequitable."962 The Supreme Court of Colorado has held:963 A casual glance at any general statement of the doctrine of laches makes it clear that the Great Western Company is now barred thereby. Extraordinary lapse of time, the running of all statutes of limitation, knowledge of rights, complete failure to assert them, presumption of prejudice arising from that failure, absence of evidence to rebut that presumption, and passive assent to adverse claims, all are here. * * * ? * * ? * * * Nor can we close our eyes to the fact, well known to all persons in the commonwealth having any interest in or knowledge of the subject of irrigation and the conditions on the principal streams and watersheds of the state, that such delay as is disclosed by this record could not possibly take place on any of them without serious prejudice to junior appropriators. In the interstate case of Washington v. Oregon the United States Supreme Court said: "The essence of the doctrine of prior appropriation is beneficial use, not a stale or barren claim. Only diligence and good faith will keep the privilege alive. * * * When these are shown to be lacking, the water right will fail, or fail to the extent that equity requires."964 Laches, as well as estoppel, is an affirmative defense which must be pleaded.965 Public works.- In 1895 the Nebraska Supreme Court declared:966 The rule which denies relief in equity to one who has slept upon his rights applies in all its force to cases where the defendant is engaged in a work of public interest. In fact, there is no principle more firmly established in the jurisprudence of this country than that a suitor who has, by his laches, made it impossible to restrain the completion or use of public works without great injury to his adversary or the public, will be left to pursue his ordinary legal remedies. The principle was first announced in California in the leading ground-water case of Katz v. Walkinshaw: "Where the complainant has stood by while the ^Rhodes y. Weigand, 145 Mont. 542, 402 Pac. (2d) 588, 592 (1965). 963Great Western Res. & Canal Co. v. Farmers Res. & In. Co., 109 Colo. 218, 221, 222, 124 Pac. (2d) 753 (1942). Compare Lower Latham Ditch Co. v. Louden Irrigating Canal Co., 27 Colo. 267, 273-274, 60 Pac. 629 (1900). ^Washington v. Oregon, 297 U.S. 517, 527-528 (1936). Compare Morris v. Bean, 146 Fed. 423, 434-435 (C.C.D. Mont. 1906), affirmed, 159 Fed. 651 (9th Cir. 1908), 221 U.S. 485(1911). 965 Johnston v. Woodard, 376 Pac. (2d) 602, 604 (Okla. 1962). 966Clark v. Cambridge & Arapahoe In. & Improvement Co., 45 Nebr. 798, 808, 64 N.W. 239 (1895). |
