Dalton v. Rentaria

• Decision Date: 26 September 1887
• Docket Number: Civil 190
• Citation: 2 Ariz. 275,15 P. 37
• Parties: W. A. DALTON et al., Plaintiffs and Appellants, v. LORENZO RENTARIA et al., Defendants and Respondents
• Court: Arizona Supreme Court

15 P. 37

2 Ariz. 275

W. A. DALTON et al., Plaintiffs and Appellants, v. LORENZO RENTARIA et al., Defendants and Respondents

Civil No. 190

Supreme Court of Arizona

September 26, 1887

APPEAL from a Judgment of the County Court in and for the County of Pima.

Reversed.

Earll Campbell & Stephens, for Appellant.

The plaintiffs plead the statute of limitations. The court fails to find upon that issue. This error is fatal. Knight v Roche, 56 Cal. 15; Baggs v. Smith, 53 Cal. 88; Baggs v. Smith, 53 Cal. 300; Baggs v Smith, 53 Cal. 435; Baggs v. Smith, 53 Cal. 687.

The defendants have slept on their rights for a period extending from 16 to 50 years. In the meantime the plaintiffs have reclaimed the desert, built their homes, and lived in peace and plenty. There is still water for all, and certainly equity will protect these plaintiffs.

Hereford and Lovell, for Respondents.

Wright, C. J. Wright, C. J., Barnes and Porter, Jj., concur.

OPINION

The facts are stated in the opinion.

WRIGHT, C. J.

Plaintiffs brought this suit in the county court of Pima county, in March, 1885, to restrain the defendants from preventing the waters of the Santa Cruz river from flowing through certain acequias, whereby said waters were conducted upon plaintiff's land. After averring that said lands had been owned and cultivated by plaintiffs, or those under whom they claim, for a period of time ranging from 16 to 50 years, the complaint then, among other things, alleges "that during all the times herein mentioned said lands have been irrigated from the waters of the Santa Cruz river, from one main acequia, and distributed by others, which were kept in common repair for the use of all, below one and one-half miles above said Silver lake, in proportion to the lands respectively cultivated. That for more than sixteen years these plaintiffs, their grantors and lessors, have contributed their respective proportion of labor and expense in maintaining all of said acequias, for irrigating said lands, equally with defendants, and all others below said point. That said lands are agricultural, capable of raising valuable crops; but without irrigation no crops can be raised, and those now growing will perish, and plaintiffs lose the labor performed, seed sown, and expenses incurred attending the same. The defendants refuse to permit these plaintiffs to use any of the waters of the said Santa Cruz river to irrigate their respective lands. That said defendants, although requested to permit said water to flow through said acequias upon plaintiffs' lands, as plaintiffs were entitled to have them do, and as has been always heretofore permitted, disregarding said right, since the said thirtieth day of March, 1885, have unlawfully prevented the use of said waters, and threaten to so continue to wholly deprive plaintiffs of the enjoyment thereof."

The answer denies and traverses the allegations of the complaint except that it admits that lots 13 and 14 in section 10, and 23 and 24 in section 11, and the south 10 acres in section 11, had been occupied for 23 years; and the said answer further admits that the greater part of plaintiffs' lands as described in the complaint had been cultivated for 16 years. These admissions on the record are significant, and evoke a serious reflection. If the greater part of the plaintiffs' lands has been cultivated for the last 16 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 16 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 16 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 expense, and bear their proportion of the labor in building and repairing the acequais, and otherwise do and perform such acts as indicated that plaintiffs believed they had equal rights with defendants to the waters of the 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 16 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, non-action, on the part of the defendants, for so long a time, gave consent. They could not consent "till right 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, 4 Am. Rep. 398; Parke v. Kilham, 8 Cal. 77, 68 Am. Dec. 310; Joyce v. Williams, 26 Mich. 332.

In the case of Niven v. Belknap, 2 Johns. 573, Judge Thompson held that silence worked an estoppel. In delivering the opinion of the court he says: "Though it does not appear positively from the evidence that Belknap took any active agency in this negotiation, yet his presence and silence are equally efficacious and binding upon him, if the complainant was thereby misled and deceived. There is an implied, as well express, assent; as where a man who has a title an knows it, and either encourages or does not forbid the purchase, he and all claiming under him, shall be bound by such purchase." It is very justly and forcibly observed by a writer on this subject (Rob. Frauds, 130) that there is a negative fraud in imposing a false apprehension on another by silence, where silence is treacherously expressive. In equity, therefore, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking when conscience requires him to be silent.". And in the case of Gregg v. Von Phul, 1 Wall. 274, the learned judge used this language: "No one is permitted to keep silent when he should speak, and thereby mislead another to his injury."

In the case at bar, the defendants allowed the plaintiffs, or those under whom they claim, to open out their fields, and irrigate them with water of the Santa Cruz river, as though they had a vested right therein; to vote for and participate in the election of water overseers or commissioners; to pay their proportion of the assessment for water development, etc.; to pay their part of the expenses, and do their part of the labor, in cleaning and repairing the acequias; to expend large sums of money in payment for their lands, putting them in cultivation, and building their homes,--and all this, too, for a period of 16 years or more. Can the defendants now exclude the plaintiffs from a participation in the use of these waters? We are of the opinion that they cannot. See Dickerson v. Colgrove, 100 U.S. 578; Kirk v. Hamilton, 102 U.S. 68, and authorities there cited. Judge Harlan, in this case, quotes from King v. Inhabitants of Butterton, 6 Term. R. 554, in which Justice Lawrence said: "I remember a case some years ago in which Lord Mansfield would not suffer a man to recover in ejectment where he had stood by and seen the defendant build on his land." This doctrine of equitable estoppel in pais will apply to cases even in courts of law.

It might be observed that, in this case, it is true there were occasionally disputes about who had the prior right to the use of the water. Indeed, from the defendants' testimony, especially that of Mr. Oury, these individual disputes had occurred prior to 1862, a period anterior to the time, as alleged in defendants' answer, when the plaintiffs first cultivated their lands; so that some of these disputes must have occurred between occupants of the "Old Fields" alone, while some of them may have occurred between occupants of the "New Fields" alone. But the testimony all shows, from first to last, that the plaintiffs always claimed an equal right to the use of said waters. The testimony, we think, also shows that plaintiffs also equally enjoyed the use of said waters, and there seems to have been a pretty general acquiescence in the plaintiff's said use until the year 1885, when by some means, which are not apparent from the evidence, Carrillo, Hughes, and Davis became the acting water commissioners, by whose authority perhaps, whether legitimate or, not, Rentaria, the acting water judge or overseer, prevented the flow of said waters through said acequias upon plaintiffs' land; and this suit is therefore the first distinct contest between the cultivators of the "Old" and "New Fields," involving their respective rights to the use of the waters of the Santa Cruz river.

Again the admissions in defendants' answer raise another important question. All the evidence shows--in fact, it would go without saying--that the lands in the valley of the Santa Cruz river, both the "Old and New Fields," are absolutely worthless for agricultural purposes without the waters from said river. Now, if the greater portion of plaintiffs' land has been in cultivation for 16 years or more, it must inevitably have been irrigated with waters from the Santa Cruz river; and taking the averment in defendants' answer as true, that plaintiffs only had the use of the surplus water, is not the...