49 P. 850 | Or. | 1897
Opinion by
This suit was commenced in May, 1895, to restrain the defendant from diverting water from Smyth Creek, in Harney County, Oregon. The plaintiff claims a prior appropriation of all the water of the creek, and seeks to have his claim established by decree, and the defendant permanently enjoined from interfering in any manner with his use thereof. The defendant concedes that plaintiff is entitled to some use thereof, but claims by his answer an appropriation of one hundred and fifty inches prior in time and superior in right to that of plaintiff. The questions presented by the briefs and at the argument are: (1) What is .the amount of plaintiff’s appropriation? And (2) is he estopped to question any appropriation that defendant may have acquired?
In May, 1873, the plaintiff settled upon a pre-emption claim consisting of the southwest quarter of the northwest quarter of section one, the southeast quar
There is some conflict in the testimony touching the extent of these meadow lands. The plaintiff says they contain from one hundred and thirty to one hundred and forty acres; the defendant, one hundred and ten; while other witnesses estimate the area thereof at not more than eighty or ninety acres. From the whole, it is quite probable that one hundred and twenty acres is a fair estimate. Besides these meadow lands, plaintiff early began the cultivation and irrigation of grain and garden lands which theretofore were arid and covered with sagebrush, and reduced to cultivation and continuously irrigated for a number of years last past, according to his statement, about eighteen acres, — fifteen of grain and three of garden. Other witnesses vary in their estimates, some being higher and some others lower than the plaintiff’s, but his statement we believe to be substantially correct. From plaintiff’s case in chief, it is impossible to gather any definite idea touching the quantity of water needed or required for the irrigation of these lands. The defendant has, however, cured this defect, and from his testimony we are able to arrive at a fairly satisfactory conclusion. The witness Whiteside testifies to having had experience in the use of water
Is there enough in all this, however, to constitute an estoppel in defendant’s favor? It must be remembered that the plaintiff was also, during the same period of time, in the full enjoyment of his completed prior appropriation, of which the defendant was all the while fully cognizant. In Boggs v. Mining Co., 14 Cal. 368, it was said, “There must be some degree of turpitude in the conduct of a party before a court of equity will estop him from the assertion of his title; the effect of the estoppel being to forfeit his property and transfer its enjoyment to another.” These elements must concur, to constitute the estoppel for which defendant contends, viz.: He must have been destitute of knowledge of his own legal rights, and of the means of acquiring such knowledge; the plaintiff must have made some admission or done some act
Reversed.