CONCURRING.
I concur in the majority opinion by Mr. Justice Lusk. In doing so I rely expressly upon his conclusion that the statute (% 116-437, OCLA) which effects loss of a water right by a failure of the owner thereof to put it to a beneficial use for a period of five successive years, is applicable to the state, such statute obviously having been passed for the general public good and being expressive of the public policy of the state in *561relation to the nse of the public waters. The legislature, in adopting that statute, gave particular recognition, it seems to me, to the tremendous importance which it attached to the conservation of such waters by encouraging their beneficial use and discouraging their nonuse.
It is to be remembered that in the present ease the .state, for 13 consecutive years, absolutely failed to make any application of the waters in question to a beneficial use. Five years’ nonuse bars all rights under the statute. To say that, after nonuse of the water for 13 years, the state may assert an absolute right thereto as against an intervening appropriator, is tantamount to saying that the statute may never be invoked against the state. Even in England the rule is not so absolute, for there such a statute may not be pleaded by the Crown after sixty years. 3 B1. Com. 307; Crown Suits Act, 1769, 9 Geo. III, c. 16, as amended by Crown Suits Act, 1861, 24 and 25 Vict. c. 62.
However, I take the position that in any event the maxim, nullum tempus occurrit regi, has no application to the case at bar. Section 116-437, OCLA, is not a statute of limitation but one of forfeiture. A statute of limitation affects only the remedy, not the right; whereas the statute under consideration forfeits the very right itself.
Courts of equity, even where laches is not pleaded, may withhold relief from those who for an unreasonable time have delayed the assertion of their claims. Willard v. Wood, 164 US 502, 17 S Ct 176, 41 L ed 531. Laches has been defined as “The neglect to do what in law should have been done, for an unreasonable and unexplained length of time and under circumstances permitting diligence.” Babb v. Sullivan, 43 SC 436, 21 SE 277. It has been well said that “reasonable *562diligence is essential to call into action the powers of a court of equity.” 19 Am Jur 339, Equity, § 490.
The doctrine that laches is imputable against the state is one to which this court has long been committed. State v. Warner Valley Stock Co., 56 Or 283, 304, 106 P 780, 108 P 861; State v. Hyde, 88 Or 1, 40, 169 P 757, 171 P 582; State ex rel. v. School District No. 9, 148 Or 273, 287, 31 P2d 751, 36 P2d 179; State ex rel. v. School District No. 23, 179 Or 441, 461, 172 P2d 655.
The public interest in cases like the present is made evident when one considers that, in semi-arid regions, failure to irrigate will result in the reversion of meadow land to desert. But if another appropriator puts the abandoned water to beneficial use in the irrigation of his land, the desert becomes meadow, and, in place of a deserted and abandoned homestead, a new homestead comes into existence. A highly desirable public policy has thus been subserved; it is not exactly waste of water, but waste of land that is involved; and it seems to me that the assertion of old and abandoned rights, even by the state, in such circumstances is and should be against public policy and barred by laches.
“Although statutes of limitation do not run against the government, yet the staleness of the claim may be taken into' consideration in determining the question whether a court of equity should interfere and grant relief when the United States, as well as a natural person is a complainant. When the United States comes into a court of equity as a suitor, it is subject to the defenses peculiar to that court.” United States v. White, 17 P 561, 565, quoted with approval in State v. Hyde, supra, 88 Or 1, 40, 169 P 757, 171 P 582.
*563Vigilantibus ac non dormientiibus jura subveniunt. In my opinion, the state was barred by lack of diligence in the premises from asserting any rights to the use of the water in question, and its grantee is in no better position.