dissenting.
While I have been nnable to reach the same conclusion as that reached by my associates in re the so-called “beer bottle” corner, I pass that point Avithout discussion. The defense of estoppel, however, based upon the laches of the plaintiff, is in my judgment so clearly established that I cannot permit the majority opinion to go down without expressing my views upon that point.
From quite an early date, the corners of section 36 have been uncertain and the correctness of the original survey has been questioned in the neighborhood. Resurveys made by the government failed to relieve the situation of its uncertainty. The question as to whether or not the corners, as established by the original survey, were found by the surveyors making the resurveys is so uncertain that the boundary line between the lands of plaintiff and defendant has never been satisfactorily settled. As a result of the survey and resurveys, section- 43 was established, and a patent issued to defendant in 1904 for the land in controversy, which he had entered in 1898. It appears from the undisputed evidence that when defendant made his homestead entry in 1898 he took possession of the land up to the boundary line as he understood and claimed it to be; that he continued in such possession for the full period of five years required by the homestead laws, and in 1904 received from the United States government a patent for the land of which he had been in possession for the prior five years, and which land is the land in controversy. As soon as the patent Avas issued to him, the land was, by the regular taxing officers of the state, assessed and taxed in his name as owner, and continued to be so assessed and taxed down to the commencement of the present suit. Such taxes were regularly paid by defendant. It appears, therefore, Avithout dispute, that the defendant had been in posses*317sion of the land in controversy, under claim of ownership, for eleven years prior to the commencement of this suit, with full knowledge on the part of the state of his possession and claim of ownership under his homestead entry in 1898 and patent of 1904, and with the further knowledge on •the part of the state that the land had, since 1904, been assessed and taxed to defendant as “section 43”; that he had regularly paid his taxes so levied, and that such taxes were annually accepted and used by the state. With knowledge of all of these facts, no attempt was ever made by the state to dispossess defendant of this land until it instituted the present suit in 1909. The mere fact that a lessee of the state may have questioned defendant’s right to a portion of the land claimed by him, and one year hauled off and stacked some hay which defendant had cut thereon, cannot, in my judgment, in any manner operate to the advantage of the state, or be construed as an assertion by it of its right to the land claimed by and in the possession of defendant. Nor should the fact that defendant permitted the taking of his hay by such lessee, and thereby possibly avoided litigation over something that was probably of little value, be taken as any relinquishment by defendant of his claim. Nor is it material that, if defendant succeeds in holding the land, section 36 may be “short.” The land obtained by the state under its grant from the government was “section 36,” as shown by the first approved government survey, and was limited to the number of 'acres which it actually contained, whether that number were 640 acres or a less quantity. That the government did not at the time regard the land in controversy as a part of section 36 is evidenced by the fact of its establishment of section 43 and the issuance to defendant of a patent therefor. While I freely. concede that, as against the state in the exercise of any of its governmental functions, there can be no estoppel, I am unable to see why, in a suit in equity or an action at law for the enforcement or protection of a mere property right, the state is not as *318much subject to the doctrine of estoppel as is any other litigant. The authorities so hold. State v. Lincoln Street R. Co., 80 Neb. 333; United States v. Stinson, 125 Fed. 907; United States v. Chandler-Dunbar Water Power Co., 152 Fed. 25; Walker v. United States, 139 Fed. 409; Bullis v. Noble, 36 Ia. 618; City of Peoria v. Central Nat. Bank, 224 Ill. 43; United States v. Willamette Valley & C. M. Wagon Road Co., 55 Fed. 711; Cooley, Constitutional Limitations (5th ed.) *254; State v. Flint & P. M. R. Co., 89 Mich. 481; Simplot v. City of Dubuque, 49 Ia. 630. And this, too, without reference to the statute of limitations. State v. City of Des Moines, 96 Ia. 521.
It is urged by the attorney general that defendant knew that the state was leasing “this land” to Rowley and Bachelor, and that the public records at Lincoln and in Cherry county showed it. I do not think so. What those records shoAved, and what defendant. would thereby be bound to knoAV, Avas that the state had leased to those gentlemen “section 36”; but those records would not advise him that the state was claiming that his land was in section 36. He certainly would have no reason to think so from those records, when he had in his possession a patent from the United States government which showed that the land he claimed was in section 43.
How long would a similar case stand if the plaintiff were an individual or a private corporation, instead of the state? To illustrate: Smith owns a large tract of land. He donates a portion of it to an irrigation company incorporated under the laws of the state. The •company digs its ditches, and has the water flowing therein, through not only the land which it receives from Smith, but also through adjoining lands which still belong to Smith. Subsequently Smith sells the adjoining land to Jones on a five-year contract, which provides, as a condition for Jones’ obtaining a deed from Smith, that Jones must pay Smith $14 (the amount which defendant paid for his homestead), and actually reside upon the land for the five years specified in the contract. There is a *319dispute as to the boundary line between the land donated to the irrigation company and that conveyed to Jones. Jones immediately takes possession of the land up to the boundary line as he claims it to be. He retains such occupancy of,-and maintains his residence upon, the land for the full period of the five years specified in his contract with Smith. Smith thereupon executes and delivers to him a warranty deed for the land. The irrigation company immediately demands of Jones that he pay to the irrigation company a dollar a year for the upkeep of the ditch which goes through the land he is claiming to own. Jones pays the dollar a year to the irrigation company each year for five years thereafter. During all of this period of more than ten years that Jones has been , in possession, the irrigation company takes no steps to dispossess him of that portion of the land Avhiclx .it claims is within the limits of its grant from Smith, but after the lapse of .those years it brings a suit against Jones to quiet its title to and for the possession of the land in dispute. How long would tbe case of the irrigation company last in this court? Just long enough for us to write a short opinion dismissing its suit upon the ground that by its own gross laches it is estopped to question either the title or right of possession of Jones.. The case thus outlined is in all respects a twin brother of the case decided in the majority opinion.
In United States v. Chandler-Dunbar Water Power Co., supra (p. 40) it is said: “Following the ancient common law maxim ‘nullum tempus occurrit regi,’ it has been settled as the rule here that the United States is not affected in respect to its pursuit of remedies by mere delay or general statutes of limitation. But, when it sues in equity as a private suitor on a cause of action relating to its proprietary interests, it is held to be affected by those equities which are recognized as fundamental in controversies between private parties.”
To my mind it would be an act of injustice to take this land from the defendant and give it to the state. If the *320state had been prompt in the assertion of its claim in 1898, when defendant entered the land and took possession of it, and had then ousted him, he could have obtained other land by homestead entry, or have purchased the same at a price far less than that at which he could possibly obtain it noiv, and could have devoted his 13 years of energy and labor to the improvement of the same. T cannot give my consent to such confiscation on the part of the state.
Reese, C. J., concurs in this dissent.