But a review of the decisions shows that the great weight of auth rit is consonant with the views we have here expressed. All concur that such facts constitute an estoppel as to personal property, and upon reason and principle, to prevent fraud and promote justice, the same rule should be extended to real property." It is also true, that the common law courts of Pennsylvania have adopted it; and they have adopted many other principles which had first received their sanction in courts of equity: Wentz v. Dehaven, 1 Serg. & Rawle, 312. The same principle was applied in Corbet v. Noreron, 35 N. H. 115, and in Heard v. Hall, 16 Pick. 457, and in White v. Palten, 24 Id. 324.

In the State of Nevada they have yielded to the force of the same doctrine, as will be seen from the case of Sharon v. Minnock, 6 Nev. 389; so also in California, Kelly v. Taylor, 23 Cal. 11; 5 Id. 84, and 8 Id. 44.

In Snowdon v. Wilds, 19 Ind. 14, the court say: "But though a parol license, amounting, in terms, to an easement, is revocable as to future enjoyment at law, and is determined by a conveyance of the estate upon which it was enjoyed, this is not the rule in all cases, in courts of equity. In these courts the future enjoyment of an executed parol license, granted upon a consideration, or upon the faith of which money has been expended, will be enforced, at all events, when adequate compensation in damages could not be obtained. This will be done upon the two grounds of estoppel and fraud, and the specific performance of a partly executed contract to prevent fraud. And in those States where law and equity are administered in the same court, relief is afforded in any given suit when the pleadings present the necessary averments." When courts of law so freely apply this principle in regard to personalty, it is difficult to comprehend why any hesitation should exist in its application to real estate. What would be justice in one case would be equally so in the other, and in equity it is accordingly admitted; and why should it not be so at common law? It may be said, however, that the distinction between law and equity is maintained in this Territory. That is true only in a qualified sense. The same officer administers both, and at the same term of court, and to me it seems strange and preposterous for the same judge to

turn the party out of his court one day to enable him to avail himself of a well known, well defined and well settled rule in jurisprudence, as applicable in a rational point of view to proceedings in one tribunal as in those of another, especially when, as in this Territory, the very court which is to decide in equity is the same tribunal. It can not be controverted that, under the facts set forth in the declaration, Yunker would be entitled, in a court of equity, to a remedy that would secure him in the enjoyment of the ditch and the water flowing therein. Would a court of equity also compensate him for the damages which he has sustained by reason of the unjust interference of Nichols? Then it would be invading the domain of the law, and setting itself up as the admeasurer of damages; a comfortable and assuring spectacle indeed, when the same judge had, the day before, declined, for reasons of grave public policy, to invade the domain of equity. If the court should, however, feel unable to award compensatory damages, Yunker would be remediless, for the affirmance of the judgment below would bar his right of action, although the deed which the court of equity would require Nichols to make might be adjudged to take effect from the date of the

construction of the ditch.

In the notes to Smith's Leading Cases, Vol. 2, p. 762, (6th Am. Ed.), the learned annotators say: "It would, therefore, seem too late to contend that the title to real estate can not be barred by matter in pais without disregarding the Statute of Frauds, and the only room for dispute is as to the forum in which relief must be sought. The remedy in such cases lay originally in chancery, and no redress could be had in the courts of common law unless under rare and exceptional cases. But the common law has been enlarged and enriched with the principles and maxims of equity, which are constantly applied at the present day in this country and in England, for the relief of sureties, the protection of mortgagors and the benefit of purchasers, by a wise adaption of ancient forms to the more liberal spirit of modern times. The doctrine of equitable estoppel is derived from the courts of equity, and as those courts apply to every species of property, there would seem no reason why its application should be restricted in courts of law. Protection against fraud is equally necessary

whatever be the nature of the interest at stake, and it would seem that, whether the controversy be in equity or at law, there is nothing in the nature of real estate which should deprive it of the benefit of those wise and salutary principles which are now applied without scruple, in both jurisdictions, in case of personalty. And whatever may be the wisdom of the change which has broken the barriers by which the doctrine of equitable estoppel was formerly excluded from legal tribunals, it has now gone too far to be confined within any limits less than the whole field of jurisprudence." Buckholler v. Edwards, 16 Ga. 593.

It seems to me, after the doctrine has received the sanction of such courts as those of Maine, New Hampshire, Pennsylvania, Georgia, Ohio, Indiana, Iowa, Nevada and California, we can run no serious risk in applying its benefits to the property within our borders. If the foregoing views are in any measure open to objection, still another reason exists which imperatively demands the reversal of the judgment below. At an early period in our territorial history, the legislature, keenly alive to the wants and necessities of our people, enacted a law on the subject of irrigation, the provisions of which were designed to secure to all persons who claim, own. or hold a possessory right or title to land within the boundary. of Colorado, when those claims are on the bank, margin or neighborhood of any stream of water, the use of the water of said stream for the purposes of irrigation and making said claims available, to the full extent of the soil, for agricultural purposes; and further providing that, when the land so held or owned is removed from said stream of water, the owner or claimant shall be entitled to a right of way through the farms or tracts of land which lie above and below him on said stream, for the purposes above stated. The constitutionality of this law is, however, assailed, and it becomes necessary to pass upon it. To avoid acknowledging the fact that constitutions sometimes surrender to the force of necessity, the general opinion obtains that courts and legislatures are justified in presuming that, within the scope and spirit of wise, august instruments, every power may be found, the exercise of which is essential to the public welfare.

If the warrant for performing an act, justly esteemed indis

pensable to the public prosperity is not found in an express grant, then the authority finds lodgment in the implied powers of the constitution; for whenever the end is required the means are authorized, and whenever a general power to do a thing is given, every particular power necessary for doing it is included. It would be almost impracticable, if it were not useless, to enumerate the various instances in which Congress, in the progress of the government, has made use of incidental and implied means to execute its powers; they are almost infinitely varied in their ramification and details: 2 Story on Const., § 1258. One of the most important interests of this Territory is the agricultural interest. This can only be fostered and nourished by a system of irrigation, and the right to legislate on this subject seems to me clear and unquestionable. If then, the agriculture is essential to the well-being of this Territory, and can only be developed by a system of irrigation, it seems to me a matter of absolute necessity that the legislature should have power to pass needful laws whereby the great body of land lying within our boundaries should be made available-and that necessity confers a right to pass such laws, I will endeavor to demonstrate. No such power as that of selling lands for the non-payment of taxes is to be found in the revealed, natural, civil or common law. But there are analogous powers to be found in the common law code and in the statute law of every civilized nation; for example, the power to condemn land for public uses, and the other cases where power is exercised over the estates of citizens, such as the sale of lands for the payment of the debts of owner. The taxing power has no existence in a state of nature. of civil society; government begets its necessity. There must be interwoven in the frame of every government a general power of taxation. Money is with propriety considered as the vital principle of the body politic, as that which sustains its life and motion and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of revenue, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution. From a deficiency in this particular, one of two evils must

It is the creature

necessarily ensue: either the people must be subjected to continual plunder, or the government must perish for want of revenue to support it. It may therefore be laid down as a principle of universal constitutional law, that the power to levy taxes is incident to sovereignty, without which no government could exercise the powers expressly delegated to it: Blackwell on Tax Titles, 8-39; Pasham v. Decatur County, 9 Ga. 352.

If, therefore, the right to raise revenue and to sell land for the payment of taxes is made legal and constitutional by virtue of the necessities of society and government, what tenable objection can be made to the validity of a law which, taking note of an imposing public necessity and the physical conditions of our Territory, accords to all persons engaged in agricultural pursuits a right of way over lands lying between their possessions and a stream of water?

Is not the necessity in this particular instance quite as imperative as in the other?

Every member of society is presumed to have assented to the public law by which his right of property is subjected to the dominion of strangers. The manner in which this power is to be exercised is specified in the law. The same law which creates this power bridles its execution. You may take my property to pay my debts, but you must ascertain that debt by judgment, and a sheriff must execute the power. You may take my land to build a railroad, but you must pay me the value of it. And hence, while it may justly be said that a party has an unquestionable right, owing to the necessities of the country, to construct a ditch over the land of another, independent of any special law on the subject, yet the legislature, as the representative of that society into which. each citizen enters, and in the entering of which he sacrifices so much of his rights for the purchase of social protection, may prescribe the method, terms and means whereby that rit to construct the ditch shall be exercised. Of course these legislative provisions may be waived by the parties, as was done in this case. The construction of a ditch for irrigating purposes seems to me to rest on principles analogous to those which sustain the right of a private way over the land of another.