A petition for rehearing has been filed in this case in which it is contended that the opinion filed is erroneous in two particulars :
First, in holding that the trial court properly excluded the offered testimony of witness F. M. Bistline relative to some statement purportedly made by a Mr. Davis to J. Paul Evans to the effect that L. L. Evans (deceased father of J. Paul Evans) had stated: “That if they put a warehouse up there he would see that they had all the necessary land they needed for it”. Appellants claim error “For the reason that J. Paul Evans was the owner of the land at the time the warehouse was placed on the property and that any statement or admission made by him or in his presence, against his interest would be admissible”. In support of appellants’ contention that the excluded testimony was admissible under an exception to the hearsay rule appellants assume, and ask the court to assume, that J. Paul Evans was the owner of the land involved at the time the warehouse was placed upon it. The record does not disclose such assumed state of facts, nor does the record contain any evidence from which the court would be justified in assuming that such a fact existed.
Appellants’ second contention is that the court erred in not holding that respondents were estopped to question appellants’ rights to the property occupied by the warehouse. This Court has repeatedly stated the essential elements of an equitable estoppel. See Cahoon v. Seger, 31 Idaho 101, 168 P. 441; Sullivan v. Mabey, 45 Idaho 595, 246 P. 233; Loomis v. Gray, 60 Idaho 193, 90 P.2d 529; Little v. Bergdahl Oil Co., 60 Idaho 662, 95 P.2d 833; Edwards v. Belknap, 66 Idaho 639, 166 P.2d 451. In Charpentier v. Welch, 74 Idaho 242, 259 P.2d 814, 817, this Court, while discussing estoppel, quoted with approval as follows:
“ ‘ “For its application there must be some intended deception in the conduct or declarations of the party to be es-*140topped or such gross negligence on his part as to amount to constructive fraud.” ’ ”
“ ‘The essential elements of an equitable estoppel as related to the party ■estopped are: (1) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) Lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially. 19 Am.Jur., Estoppel, § 42, pp. 642 and 643.’ ”
In the instant case there is no competent evidence to support a contention that appellants’ position was changed or that they were in any manner influenced by any deception in the conduct or declarations of any party, nor that appellants were without knowledge or the means of knowledge of the real facts. Norwithstanding the fact that the warehouse (now belonging to appellants) stood upon a portion of the area in controversy for approximately 27 years prior to the date it was conveyed to respondent, State of Idaho, the record does not disclose that appellants or their predecessors in interest at any time during said period claimed title to or occupied any portion of said area with hostile intent. In our judgment the record is wholly wanting in the essential elements of estoppel.
The petition for rehearing is denied.
TAYLOR, C. J., and SMITH and Mc-FADDEN, JJ., and MARTIN, District Judge, concur.