to repay whatever sums had been paid by the defendant on taxes and the mortgages, with interest, and to pay whatever sums were due the defendant by the terms of the contract, with interest. A decree compelling the defendant to convey upon receiving all she would have received for her land had the contracts been performed according to their terms, with interest as compensation for the delay, would have enforced all unperformed conditions of both contracts; would have given the defendant what she agreed to accept for her land; and would have been entirely just and equitable. There can be no doubt of the court's power to have rendered such a decree. Therefore there was mutuality of remedy within the meaning of the statute.

[9] The notice of deposit required defendant to furnish abstracts of title, a condition not justified by either contract. The evidence discloses that the defendant had paid certain taxes and certain sums as interest on the mortgages, which, as we understand the record, were not included in the plaintiff's tender, presumably because the fact of such payments by the defendant was unknown to the plaintiff when its tender was made. The evidence. also discloses that, after plaintiff's tender and before the trial, the defendant paid both mortgages. On the trial, the plaintiff offered to repay all sums paid by the defendant, with interest. This offer, in connection with the tender, in absence of any objections to the tender, clearly entitled the latter to be heard on the merits of its cause of action. Rev. Civ. Code, § 1167. Montgomery v. De Picot, 153 Cal. 509, 96 Pac. 305, 126 Am. St. Rep. 84. The fundamental principle governing this phase of the case is the maxim that "He who seeks equity must do equity." It conclusively appears that the plaintiff was ready, able, and willing to perform all the unperformed conditions of both contracts; to compensate the plaintiff by repayment, with interest, for all payments made by her; and that it would have done so if permitted by the defendant or required by the trial court.

[10] The expressions frequently found in the books regarding the discretionary powers of courts of equity, in actions to compel the specific performance of contracts, unless taken with certain

limitations, are misleading. They do not mean that judgments in such actions may not be reviewed and reversed if found erroneous. When, as in this case, the material facts are established by undisputed evidence, "the principles of equity come into operation and pronounce with certainty and absoluteness whether the remedy shall be granted or withheld." Pomeroy on Contracts, § 46. Upon the undisputed facts disclosed by the record on this appeal, we think the remedy should not have been withheld. The judg ment and order appealed from are reversed.

BUTZ v. RICHLAND TP.

A permission, given without consideration by an owner for the use by a township of his land for the discharge across his land of the surplus water of an artesian well sunk by the township on its land for irrigation purposes for the inhabitants of the township, and not given in the form of a grant or conveyance in writing, is a mere license, subject to revocation by the owner or his grantee; a "license," in real estate, being an authority to do a particular act on the land of another without possessing any estate therein, and being founded in personal confidence, revocable at will; and an "easement" being a privilege in land, without profit, existing distinct from the ownership of the land, founded on a grant in writing, within the statute of frauds (Civ. Code, § 1238).

Where a licensee in real estate has acted under the authority given by the licensor, and has incurred expense in carrying out the authority, the license is an executed contract, and equity will not permit it to be revoked.

A township completed an artesian well, sunk for irrigation purposes, for the inhabitants of the township, as authorized by law. Subsequently it obtained, without consideration, a license to discharge across the land of an individual the surplus water. It incurred no expense in exercising rights under the license, and there was no natural water course on the land of the individual along which the waters would naturally flow. Held, that the individual or his grantee could revoke the license at will.

(Opinion filed, February 29, 1912.)

Appeal from Circuit Court, Beadle County. Hon. ALVA E. TAYLOR, Judge.

Action by Edward L. Butz against Richland Township. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. Reversed.

A. W. Wilmarth, for appellant.

An estoppel relied upon must be pleaded with particularity and precision, for nothing will be supplied by intendment, and any inference will be against and not in favor of estoppel. Dudley v. Pigg, 149 Ind. 363; vol. 16 Cyc. 805. Facts constituting an estoppel must be especially pleaded in order to be available as a defense. Walker v. Baxter, 6 Wash. 244; Warden v. Baldwin, 51 Wis. 450; Anderson v. Hubbel, 93 Ind. 570; Phillips v. Van Schaick, 37 la. 229; Golden v. Hardesty, 93 Ia. 622; Henderson vi Kentzer, 56 Neb. 460. Matters pleaded by way of estoppel must be of such character and sufficiency as pleaded, to make a cause of action for deceit on part of the party seeking to assert the estoppel. Brigham Young Trust Co. v. Wagener, 12 Utah, 1. There can be no estoppel unless the party to be estopped has misled the party invoking the estoppel as to the true facts, or else for some other reason it would be inequitable to allow the former to set up the truth as to the particular fact in question. Ketchum v. Duncan, 96 U. S. 659; Morgan v. Chicago & A. R. Co., 96 U. S. 716; Steele v. St. Louis Smelting & Ref. Co., 106 U. S. 447. No representation having been made by the defendant, he conid not well have intended or expected that it should be acted upon by the plaintiff. Farmers & M. Bank v. Farrell, 19 U. S. App. 256, 58 Fed. Rep. 633.

B. B. McCloskey, for respondent.

To constitute dedication there must be such user by the public and such acquiescence in the use by the owner of the soil as to establish animus dedicandi. Wood on Nuisances, §§ 241, 242, 248. There are several ways in which dedication of land to the public use as a street or highway may be made. It may be made by deed or through overt act, or may be presumed by the lapse of time or acquiescence of the party. City of San Francisco v. Scott, 4 Cal. 115; Case v. Favier, 12 Minn. 89. A situation once created and continued for such a length of time that it would be considered a violation of good faith to the public for the person responsible for it to restore the original situation, brings into play the principle of estoppel in pais. Village of Pewaukee v. Savoy, 79 N. W. 436.

CORSON, J. This is an appeal by the plaintiff from a judgment entered in favor of the defendant and from an order denying a new trial. The action was instituted by the plaintiff to restrain the defendant from continuing to flow water from an artesian well owned by it over and upon premises owned by him, and for damages resulting from the flow of such water upon the premises of the plaintiff. It is alleged in the complaint, in substance, that the plaintiff is the owner in possession of and entitled to the possession of a quarter section of land in Beadle county, and that the defendant constructed a well and negligently allowed the water from this well to flow over and upon the said premises of the plaintiff, thereby causing him damage.

The defendant in its answer admits the ownership of the premises by the plaintiff, the construction by the defendant of the artesian well, and that the water therefrom flows upon and over the premises of the plaintiff, but denies that such water is allowed to flow negligently, or that plaintiff is damaged thereby, and alleges, as a further defense, that said well was constructed on land owned by it in 1893, and that the then owner of the said premises claimed by the plaintiff consented that the water from the said well might flow over the said premises. And the defendant, as a further defense to said action, further alleges: "That the water from the artesian well which defendant constructed under the operation of the laws of the state of South Dakota, known as the 'Melville Artesian Wel! Law,' and amendments thereto, has flowei for 14 to 15 years from said well into a natural lake bed which is on plaintiff's land. That when said well was constructed the owner of said land fully acquiesced in the flowing of said water into said lake bed and from this into a natural water course, in which it has flowed for the length of time last aforesaid into Pearl creek, in said county. That the course of said water from said. lake bed to Pearl creek has been in no way altered or changed by this defendant for the length of time last aforesaid, but that whatever improvements were made in any way in said water course from said natural lake bed to Pearl creek were made at or about the time said well was constructed, and long before plaintiff had

any interest whatever in said land. That plaintiff, when he purchased the land, purchased it in the condition it is now in, and with full knowledge that the water from said well was flowing and had been flowing into said lake bed, and thence along the course it now pursues to Pearl creek, for a great many years. Defendant further states that it is impossible for them to close off the flow of said water, as it has broken through the pipe, and is coming out at the outside of same."

* ***

The case was tried to the court without a jury, and the court, after finding the ownership of the property in the plaintiff, and that the property was conveyed to him by its former owner on January 8, 1908, and that one Foster R. Clement became the owner of the premises on January 11, 1893, and continued to hold the title of the same until 1901, and that one C. G. Church and his assistant, E. A. Conn, were the agents of Foster R. Clement, the owner of said land, found:

"That in 1896 C. G. Church and his assistant, E. A. Conn, were the agents of Foster R. Clement, the owner of said land, and as such agents maintained an office in Watertown, S. D., and had charge, as such agents, of the land now owned by plaintiff and of other lands of said Foster R. Clement, and they, as such agents, at all times kept said Clement posted as to his business in charge of the Watertown office. That in the year 1896, and while defendant township was supplying water from said well for irrigation purposes under the laws of South Dakota, it became necessary to find an outlet for the surplus water from said well, and Burton Culver, as chairman of the board of supervisors of said township, for and on behalf of said township, applied by letter to C. G. Church, agent of Foster R. Clement, owner of said land, for permission to run water from said well over the land in question, to-wit, N. W. 14 of section 28, township 110, range 60. That C. G. Church conducted an office at Watertown, S. D., known as the 'Watertown Office.' That this office was in operation during the year 1896, and Edwin A. Conn was in his employ about the year 1897. Edwin A. Conn had the management of said office, and reported all matters to C. G. Church that said office had in charge, and