The opinion of the court was delivered by
Horton, C. J.:
In our view of this case, owing to the conduct of the defendant in error, it -is unnecessary to decidé what rights the original proprietors of the flouring mill obtained under the condemnation proceedings, instituted by them in 1874, for the purpose of diverting water from the Little *226Arkansas river into Chisholm creek, or to construe § 1, ch. 66, Comp. Laws 1879, relating to the turning of an adjacent stream, or spring into another stream. This leaves only one question for our determination: Whether the defendant in error is estopped by his silence and acquiescence in the construction and continuance of the dam and race-course in controversy, from obtaining the interference of a court, sitting as a court of equity, in his behalf as prayed for by him in his petition? In brief, whether said defendant in error has by laohes, or his own acts, deprived himself of the right to ask equitable relief? The trial court in its conclusions of law fully recognizes-the doctrine that the owner of land may lose his right to the flow of water in its natural channel upon his premises,, by permitting others to expend large sums of money in diverting the water for manufacturing purposes, and failing to commence his opposition when ,he could have done so with justice. An attempt is made, however, to except this case from the general rule, on the theory that where the results of the diversion are unforeseen, and cannot be calculated with reasonable certainty, the rule is not applicable. It may be true, that where a person has acquiesced in the erection of certain works diverting water from its natural flow upon his premises under an erroneous opinion, and in ignorance of the consequences to him, that he is not afterward estopped from all remedy, if at a subsequent period he sustains serious injury, unforeseen when the works were commenced. Generally, a mistake of fact is not binding upon one who acts in ignorance of the real condition of affairs; but if all the parties are equally mistaken in the resultant consequences, another important principle at once enters into the consideration of such cases in the courts, which is: Can the parties be placed in exactly the same situation as they were in when the first act was done by one side and acquiesced in by the other? ■ If that cannot be done, a court of equity will weigh the hardships of the case, the justice or the injustice of stopping such diversion, and will grant or refuse orders of injunction or for abatement, as shall be most in consonance with the equities of all the *227parties. If possible, the inconveniences of the parties will be regarded; and to balance these inconveniences and the injuries of parties thus acting toward each other, when inconveniences and injuries unexpectedly ensue, equity will generally decline to interfere on either side, but leave the parties to their legal rights and their legal liabilities. In a legal action, damages may be recoverable, in many cases, when the laehes of a party deprives him of the right to the interposition of equity in his behalf. If we assume that the defendant in error acquiesced in the construction of the dam, race-course and mill, in ignorance of the ultimate consequences, we must also assume that the original proprietors of the mill were equally ignorant; in other words, that neither knew the injurious consequences of the diversion of the water into Chisholm creek, and therefore, as both parties were equally mistaken, and cannot be placed in exactly the same situation as they were originally in, equity ought not to interfere on either side, but leave the parties to their legal rights and liabilities. The conclusion, therefore, of the trial court, was erroneous, in holding that the plaintiffs in error should be restrained from maintaining their dam upon the Little Arkansas, and from diverting the water therefrom, notwithstanding the acquiescence and delay of the defendant in error, on the ground that such acquiescence and delay were no bar to the' interposition by injunction and like orders, in view of the unforeseen consequences arising from the grass growing and decaying in the river. The findings of fact show that if the orders of the trial court are executed, the waters of Chisholm creek will be valueless as a waterpower, the dam and race-course will become useless, and that the mill must be run by steam, if run at all, which will cause loss and expense. Under these orders, all the loss would be thrown upon the plaintiffs in error. This would be greatly inequitable, considering the action of the defendant in error.
Further, the conclusion of the court, set forth in the findings of law, to the effect that the defendant in error was not guilty of unreasonable delay in bringing his suit, is not sustained by the findings of fact. By these findings, it appears *228that in the summer of 1876, he knew the full consequences to his premises of the diversion of the water from the Little Arkansas river, and in the fall of that year visited and walked across the dam. Thereafter he could not plead ignorance of the real facts in the case. Yet he permitted the dam in the river to be twice rebuilt to the same height, after the fall of 1876, and made no serious objection. He waited till March, 1878, to commence any legal opposition, and, therefore, in our opinion, has been guilty of improper delay in applying to the court for equitable interference in his behalf. He has acted in such a manner as estops him from the assertion of any right to the interposition of a court of equity. Whether he has also deprived himself by his conduct of all legal remedies, we need not now decide.- The conclusions we have reached dispose finally of this case. (Bankart v. Houghton, 27 Beav. 245; Birmingham Canal Co. v. Lloyd, 18 Ves. 515; Sheldon v. Rockwell, 9 Wis. 166; Tichenor v. Wilson, 8 N. J. Eq. 197; Burden v. Stein, 27 Ala. 104; Water Lot Co. v. Bucks, 5 Ga. 315; Jacox v. Clark, Walker’s Ch. 249; Sprague v. Steere, 1 R. I. 247; Gray v. O. & Pa. Rld. Co., 1 Grant’s Cases, 412.)
The judgment of the district court will be reversed, and the case remanded with direction to the court to deny the relief demanded by the defendant in error, and to render judgment in favor of the plaintiffs in error for all costs.
All the Justices concurring.