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Show 324 SUMMARIES OF THE STATE WATER RIGHTS SYSTEMS beyond controversy in this jurisdiction."110 The court said that " ' "in order to acquire a water right by adverse user or prescription, it is essential that the proof must show that the use has been (a) continuous for the statutory period * * *; (b) exclusive (uninterrupted, peaceable); (c) open (notorious); (d) under claim of right (color of title); (e) hostile and an invasion of another's rights which he has a chance to prevent." ' " ul The court also had previously indicated that an appropriator may be estopped from asserting his water right against parties whom he has misled, where there has been some degree of turpitude-such as misleading statements or acts, or concealment of facts by silence when there was a duty to speak-with the result that the other party was induced or led by the words, conduct, or silence of the appropriator to do things which he otherwise would not have done.112 In view of the constitutional declaration that the right of way over land of others for necessary water conduits and structures is a public use, the right to appropriate water on the land of another may be acquired by condemnation proceedings.113 110 Verwolfw. Low Line In. Co., 70 Mont. 570, 577, 227 Pac. 68 (1924). 111 The court added, " 'To establish adverse user in Montana, case law has, although not in this precise manner, set down three prerequisites: (1) That the claimant used water at a time when plaintiff had need of it; (2) That he used it in such a substantial manner as to notify plaintiff that it was being deprived of water to which it was entitled; and (3) That during all of that period, plaintiff could have maintained an action against him for so using the water.'" King v. Schultz, 141 Mont. 94, 375 Pac. (2d) 108, 111 (1962), quoting Havre In. Co. v. Majerus, 132 Mont. 410, 318 Pac. (2d) 1076 (1957); accord, Smith v. Krutar, 153 Mont. 325, 457 Pac. (2d) 459, 461-462 (1969). See also Firestone v. Bradshaw, 157 Mont. 181, 483 Pac. (2d) 716, 719 (1971), wherein the court held that prescriptive rights were acquired with respect to one half (by equal turns of usage) of certain water rights. 112Kramer v. Deer Lodge Farms Co., 116 Mont. 152, 174-175, 151 Pac. (2d) 483 (1944). In Smith v. Krutar, 153 Mont. 325, 457 Pac. (2d) 459, 463 (1969), the Montana Supreme Court said, "Generally speaking, estoppel arises when a party by his acts, conduct or acquiescence, has caused another in good faith to change his position for the worse. Hustad v. Reed, 133 Mont. 211, 223, 321 P.2d 1083 (1958). The following six elements have been held necessary in order for the doctrine of equitable estoppel to apply: (1) there must be conduct, acts, language, or silence amounting to a representa- tion or a concealment of material facts; (2) these facts must be known to the party estopped at the time of his conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him; (3) the truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time it was acted upon by him; (4) the conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under circumstances that it is both natural and probable that it will be so acted upon; (5) the conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it, and (6) he must in fact act upon it in such a manner as to change his position for the worse." U3Mont. Const? art. IX, §3(2). Prentice v. McKay, 38 Mont. 114, 118, 98 Pac. 1081 (1909). |
