La Luz Community Ditch Co. v. Town of Alamogordo ( 1929 )

"It does not impair the effect of the estoppel, because Mattoon was mistaken as to the import of the instrument."

So in King v. Stroup, while admitting that there were cases holding to the contrary, we decided that (syllabus):

"Where one's conduct has led another to take a position detrimental to his interest, the former will not be heard to say that he is not estopped because of his ignorance of his legal rights in the first instance, provided he has full knowledge of the facts."

See, also, Bramwell v. Rowland (1927) 123 Or. 33, 261 P. 57.

Appellant also argues that the authorities point out that the truth concerning the facts must be unknown to the other party claiming the benefit of the estoppel at the time the acts were committed and at the time the implied representations were acted upon. If the defendant and its predecessors, charged with the duty of making delivery of the water, had not discovered until after 25 years that more water was being delivered to the plaintiffs than the decree called for (if such were the case), it is difficult to conceive of how a better understanding and knowledge could be imputed to the plaintiffs.

Corpus Juris (note) says the reason for the view taken in Maine, New York, and New Mexico is that:

"The presumption is that every person is acquainted with his own rights, provided he has had reasonable opportunity to know them; and nothing can be more liable to abuse than to permit a person to reclaim property in opposition to all the equitable circumstances stated, upon the mere pretense that he was at the time ignorant of his title."

The doctrine that ignorance or mistake will not invariably defeat an estoppel seems to be in accord with the doctrine announced in Bank of Hatch v. Mossman, 25 N.M. 547, 185 P. 275, that:

"When one of two innocent parties must suffer, the one who made the conditions possible should bear the loss."

In addition to the foregoing, it would seem that the defendant was chargeable with the better means of information and knoweldge as to the amount of water delivered or to be delivered, because the duty devolved upon it and its predecessors to administer and to make delivery of the water by means of instrumentalities under its control, which duty it assumed and exercised during the time since the decree of 1898, and the plaintiffs acquiesced in the amount of water so delivered.

Appellant quotes authority to the effect that estoppel will not arise from merely receiving water that another discharges. This is conceded by appellees, but they say that more than that has been shown in this case. The court found more in its findings. Appellee thus summarizes some of the facts showing that defendant must have intended and anticipated that water users in La Luz would act upon and be influenced by its representations:

"(a) Water was valuable, and delivery to La Luz ditch, of water which Alamogordo was entitled would have been derogatory of Alamogordo's rights and interest.

"(b) Alamogordo required and could have used more water, and La Luz users had right to believe they would take it and use it if it belonged to them.

"(c) All parties are presumed to know that the law would work a forfeiture if Alamogordo failed to beneficially use the water it claimed to own.

"(d) Alamogordo owed duty to carry amount of water belonging to La Luz, and the latter had right to presume that duty would be discharged.

"(e) Alamogordo knew of the character of development going on in La Luz and knew that such development was being made and property values were being established, and that property was being used in reliance upon the water supply which had been and was being delivered to La Luz through the active agency of Alamogordo."

Appellant argues that the mere delivery of water could not be held to be a representation. This is a too narrow view. We think it is what is referred to in the books as an "implied representation."

Acquiescence in use, obstruction, or diversion of water is one of the recognized grounds of estoppel. Kinney on Irrigation and Water Rights (2d Ed.) § 1127, after showing that something more than mere passivity on the part of the person sought to be estopped is generally necessary to create the estoppel, goes on to say:

"But, upon the other hand, the circumstances may be such that it is the duty of one, where he sees his rights about to be invaded by another to speak out and lay claim to the same; otherwise he will be estopped from afterward setting them up and claiming them. Such was held to be the case where one who had a prior right by prior appropriation to the use of water of a certain stream stood by and allowed another wrongfully claiming to own the right to sell it to a third party, without asserting and making known his claim. By reason of his failing to speak when he should have spoken, he was estopped from thereafterward asserting or claiming the right. ``It is elementary that he who fails to assert his alleged rights, when in good faith he should have done so, is estopped from afterward asserting the same.' As was said in a recent Colorado case: ``He that remains silent when conscience requires him to speak shall not be heard to speak when conscience requires him to remain silent.'

"Again, where the evidence is conclusive that the owner, knowing that his rights were about to be invaded by another, stood by and permitted the other parties to construct expensive works, use, and enjoy the rights, and by his actions assented and invited such works and use, although he did not do so in terms, but by his very silence, he induces them to believe that such rights might be acquired, that thereafterward to deprive them of such rights would work an injustice and fraud upon them, such owner will be held to be estopped from setting up or claiming such rights."

See, also, Halford Ditch Co. v. Independent Ditch Co., 22 N.M. 169, 159 P. 860. Additional cases supporting this doctrine may be found in Decennial Digests, Estoppel, Key 93 (7).

In a case note in Vol. 2, Ann. Cas. P. 786, the author says:

"Injunctive relief has also been denied in cases where the diversion and use were by individuals or private corporations, on grounds of equitable estoppel and laches arising out of the consent or tacit acquiescence of the plaintiff in the erection of expensive improvements, by which the diversion was caused or for the operation of which the water was necessary; such as canals, dams, irrigation ditches, mills and railroads."

Many cases are cited, including Waddingham v. Robledo, 6 N.M. 347, 28 P. 663.

Appellant urges that, in order to create estoppel, there must be a degree of moral turpitude involved. This is another way of saying that there can be no estoppel without fraud. But, conceding this to be the law, still it is fraud to deny that which has been previously affirmed. See Pritchett v. Ahrens, 26 Ind. App. 56, 59 N.E. 42, 84 Am. St. Rep. 274. The entire argument of appellant as to why estoppel should not be applied in this case, although able and exhaustive, does not convince us. Without attempting to answer such argument further than we have done, it is sufficient to say that, under the facts and circumstances as shown in this case, we agree with the trial court that it would be inequitable to permit appellant to now change its former position to the detriment of appellees. Other contentions of appellant not here discussed we deem without merit.

The judgment of the trial court will therefore be affirmed, and it is so ordered.

WATSON and PARKER, JJ., concur.

SIMMS and CATRON, JJ., not participating.