McBroom v. Thompson

Opinion by Mr. Justice Moore. The defendants contend that the ditch was constructed under a parol license from R. B. Crego, plaintiff’s grantor, and that after its construction the license became irrevocable. The defendant, W. S. Powell, testified that after securing the deed from the defendant Thompson, the construction of the ditch was commenced with Crego’s consent, but that Henry Nichols then owned the tract of land now owned by the plaintiff. In this the witness is — 566 — in error, as the record evidence conclusively shows that Grego had obtained his deed from Nichols more than eight months prior to the date of Thompson’s deed; and while Nichols may have objected to the diversion of the water, he then had no right to speak as a riparian proprietor of the premises now owned by the plaintiff. The ditch having been constructed under a parol license from Grego, the question is presented whether such license is revocable after labor and money have been expended in pursuance thereof. “ An executed license,” says Lord, J., in Curtis v. La Grande Water Co. 20 Or. 34, 23 Pac. 808, 25 Pac. 378, 10 L. R. A. 484, “is treated like a parol agreement in equity; it will not allow the statute to be used as a cover for fraud; it will not permit advantage to be taken of the form of the consent, although not within the statute of frauds, after large expenditures of money or labor have been invested in permanent improvements upon the land, in good faith, upon the reliance reposed in such consent. To allow one to revoke his consent when it was given or had the effect to influence the conduct of another, and cause him to make large investments, would operate as a fraud, and warrant the interfence of equity to prevent it, under the doctrine of equitable estoppel.” In Coffman v. Robbins, 8 Or. 278, it was held that a parol agreement to divide the waters of a stream that had been acted upon by the parties for several years, under which ditches had been dug and possession given, would be enforced in equity. So, too, in Combs v. Slayton, 19 Or. 99, 26 Pac. 66, it was held that where the riparian proprietor had not claimed the exclusive right to the water of a stream, but had permitted the defendant to dig a ditch and appropriate a part thereof, that such acts evince a tacit agreement that each should be entitled to appropriate a just proportion of the water for the purpose of irrigation, and that such — 567 — agreement should be carried into effect. While it is claimed that the better rule, in view of the statute of frauds, appears to be that, so far as the question of further enjoyment is concerned, the licensor may revoke the parol license after an outlay under it (Bigelow on Estoppel, 666), the contrary doctrine has, by the foregoing decisions, been firmly established in this state. The reason for the estoppel in such cases rests upon the principle that the licensee, after the expenditure of money and labor on the faith of the parol license, cannot be placed in statu quo upon its revocation: 2 Herman on Estoppel, § 982. The defendants having expended their money and labor in digging the ditch upon the faith of Crego’s parol license, it follows that he could not revoke it after such expenditure, and the plaintiff, having acquired the title to his premises with notice of the diversion, could obtain no greater interest therein than his grant or possessed, and hence he cannot now revoke the license: Curtis v. La Grande Water Co. 20 Or. 34, 10 L. R. A. 484. The evidence shows that the defendants have each year since the ditch was constructed, aided the riparian proprietors, including Crego and plaintiff, in removing obstructions from the Little Walla Walla River, and in building dams in the Tum-a-Lum, under a common understanding that in consideration of such aid the defendants were to have the right to divert sufficient water for the irrigation of their lands; that the plaintiff and his grantor have for eight years, with knowledge of the diversion and use of the water, seen and acquiesced in the defendant’s improvement of their farms by means thereof, under a reasonable expectation that the diversion and use would be continued, and from these circumstances it is contended that the plaintiff is estopped from discontinuing the diversion and use of the water for irrigation. Such acqui — 568 — escence, if voluntary and continued for a considerable length of time, constitutes a quasi equitable estoppel that does not cut off the party’s title nor legal remedy, but bars his right to equitable relief, and leaves him to' his legal action alone: 2 Pomeroy’s Equity, § 817. The case of Dalton v. Rentaria (Ariz.), 15 Pac. 37, illustrates this doctrine. That was a suit to restrain the defendants from preventing the waters of the Santa Cruz River, in Arizona, from flowing in certain acequias from which plaintiffs’ land was supplied with water for irrigation. The plaintiffs had contributed their proportion of labor and expense in maintaining all said acequias for irrigating purposes equally with the defendants. The defendants, in their answer, admitted that the greater part of plaintiffs’ lands, which were arid, and would raise no crops without irrigation, had been cultivated for sixteen years. The court in passing upon the question said: “These admissions on the record are significant, and evoke a serious reflection. If the greater part of the plaintiffs’ land has been cultivated for the last sixteen years, it was done with or without defendants’ consent. If without their consent, have they not been guilty of laches, unreasonable delay, and inexcusable neglect in waiting sixteen years without taking any steps to restrain the wrongful acts of plaintiffs ? If the defendants were fairly put upon their guard; if they had actual knowledge that plaintiffs were diverting waters that belonged to defendants by virtue of prior appropriation; if they stood by for sixteen years or more, and saw the plaintiffs build their houses, open out their lands, and put them in cultivation, expend their money in the improvement of these homes, pay their proportion of the expenses, and bear their proportion of the labor in building and repairing the acequias, and otherwise do and perform such acts as indicated that plaintiffs believed they had equal rights with defendants to the waters of — 569 — Santa Cruz River,—do not all these circumstances serve to imply that defendants waived or abandoned any exclusive prior right to said waters? At least was there not such unreasonable delay as that they are now precluded from complaining? Will parties be permitted to stand by for sixteen years or more and see new fields put in cultivation, irrigated, forsooth, with water to which they have an exclusive prior right, see large sums expended in erecting new homes, and witness new and important interests intervene, and then be heard to complain? A fortiori, defendants will not be heard to complain if these things were done with their consent. Indeed, our opinion is, in this case, that acquiescence, nonaction, on the part of the defendants for so long a time gave consent. They could not consent ‘till title vested, and then dissent,’ so that it is really immaterial whether the irrigation was done with or without defendants’ consent, if they stood passively by. See Smith v. Hamilton, 20 Mich. 433: Park v. Kilham, 8 Cal. 78; Joyce v. Williams, 26 Mich. 332.” In Slocumb v. Railway Co. 57 Iowa, 675, 11 N. W. 641, the facts showed that a small creek touching a corner of plaintiffs land was crossed by defendant’s railroad upon bridges at two places. The defendant filled the bed of the creek at the two crossings, and turned the channel along the side of the railway, so that the bridges were dispensed with, and the creek did not touch plaintiff’s premises. The plaintiff stood by and saw the work of diversion progressing, and it was not until after it was fully completed, at a cost of more than five thousand dollars, that any objection was made. It was there held, upon those facts, that the trial court did not err in refusing to grant a mandatory injunction for the restoration of the stream. In the case at bar there has been more than a mere voluntary acquiescence, or standing passively by, while the defendants were digging their ditch — 570 — and improving their lands. The plaintiff and his grantor, for eight years, without any objection whatever, aided the defendants in repairing the damages caused by the winter freshets, with knowledge of their appropriation, and of the common understanding that in consideration of such aid the defendants were to enjoy the right of diverting the water for the irrigation of their lands. The defendants, thus encouraged by the plaintiff’s voluntary aquiescence and participation in a common purpose, laid out their money and expended their labor in making homes for their families, under an obvious expectation that no obstacle would afterward be interposed to prevent their enjoyment. The plaintiff’s objection, in view of the unreasonable delay, and of all the circumstances of the case, now comes too late, and under the maxim that, “ He who is silent when he ought to speak, shall not be heard to speak when he ought to keep silent,” he can have no standing in a court of equity to enjoin a diversion and use of the waters of a stream that he and his grantor have tacitly encouraged. It appears from the evidence that the defendants have been diverting about two hundred and forty inches of water from the Little Walla Walla River, without pressure, and that this quantity is necessary for their use, and that fully as much flows in the channel of said stream through plaintiff’s land, which, if diverted, would be sufficient for its irrigation. Plaintiff’s cause of suit is not based upon a division of the water in proportion to the equitable rights of the parties, but to enjoin the defendants from preventing the water of the stream from flowing through his land in the natural channel, undiminished in quantity; and since it appears that there are other riparian proprietors on said stream who are interested in the diversion, but are not parties to this suit, no decree could settle their respective rights by a division of the water, and hence it would be — 571 — useless to remand the cause for that purpose. The decree will therefore be reversed and the complaint dismissed. Reversed.