In August of 1953, plaintiff filed a condemnation suit to acquire an easement for the location, construction, etc. of a fuel oil pipeline. Included in the lands affected by said easement were certain parcels belonging to the State of California (hereinafter called “defendant”) designated in the said complaint as Parcels 29A and 29C. Said parcels were then, have been since, and are now used for highway purposes of said defendant.

On March 28, 1956, this case was assigned to this Department of the Court, and on December 22, 1958 the Court set the cause for pre-trial for April 6, 1959.

The State of California filed a motion requesting that the pre-trial be continued, alleging that there was then pending in the Central Division a case in which similar questions of law and fact were under determination; that if the pre-trial in the instant case were continued until after the decision in the case in the Central Division, a saving of expense to both parties would result, as they would have the benefit of a guiding precedent in the former case.

Since April of 1959 many postponements have been had, some because of the severe illness of one of counsel for the plaintiff, others for the purpose of awaiting the decision in the Central Division case. The State of California has stipulated that the running of interest as to any judgment it might obtain would be stopped beginning with the date of April 17, 1959, such interest to be waived during the period of postponement requested by the State. (The record is not quite clear as to just how long the running of interest was postponed; perhaps counsel can remove this uncertainty by stipulation at the proper time.)

Up to the present time counsel have not called to this Court’s attention any decision made in the Central Division case, and the plaintiff has now moved for summary judgment, and the matter has been submitted to the Court for decision upon a stipulation of facts and exhibits admitted. Each party has lodged proposed findings, conclusions, etc. and each party urges that the stipu< lation of facts and exhibits justify a ruling from this Court in accordance with its contention.

From the stipulated statement of facts, and the exhibits admitted into the record in connection therewith, it appears that a letter dated May 25, 1953 (Exhibit 1) was addressed to the District Engineer of District XI, California Division of Highways at San Diego, Mr. E. E. Wallace, by Captain A. I. Flaherty, District Public Works Officer of the 11th Naval District, U. S. Navy, at San Diego; therein, Captain Flaherty stated that the Department of the Navy proposed to construct a fuel oil pipeline in San Diego County and had retained an Architect-Engineer to design the facility and plan the alignment; that representatives of the said Architect-Engineer and the District Public Works Officer had discussed the project with representatives of the California Highway Division, and that plans for the route of the pipeline as contemplated were then available; that a complaint in condemnation would be filed, but that the filing of the action would not prevent the negotiation of a settlement between the parties.

*46 It further appears that on June 23, 1953, (Exhibit 2) District Officer Engineer R. L. Beuthel (for District Engineer E. E. Wallace) replied to the letter above mentioned, and in his communication Mr. Beuthel noted that prior to the date thereof there had been certain discussions between representatives of the California Division of Highways and of the 11th Naval District Public Works Department wherein “it was pointed out that some corrections in location of the proposed fuel line within the limits of State Highway right-of-way would reduce the possibility of future serious interference with highway uses, and at the same time would not increase the Navy’s costs and undoubtedly place them in a position where disturbance due to highway construction would be less likely”.

Mr. Beuthel then observed that the location of the pipeline as shown on the plans to enter the State Highway right-of-way was of vital importance to the State and stated in the letter:

In addition, Mr. Beuthel observed:

It appears from the stipulation of facts that pursuant to the recommendation of the California Division of Highways the plaintiff changed its plans and amended its description in the complaint in condemnation of the property of the State to be taken, so as to realign the proposed pipeline as it traversed the portions of the State’s lands designated by Parcels Nos. 29A and 29C; that the pipeline was constructed according to such realignment, was completed, and the surface of such easement right-of-way restored to the condition it was in at date of taking by plaintiff.

Paragraphs 10 and 11 of the stipulation read as follows :

*47 The stipulation of facts discloses that the parties also agree upon the following:

Paragraph 14 of the stipulation reads:

The defendant has proposed that the Court make a finding as follows:

It appears that the plaintiff by its motion urges, (1), that the State of California accepted the establishment of the relocated easement as compensation for the taking of its lands by the plaintiff; (2), that the State of California, by accepting the relocation waived its right to damages for the taking, and (3), that the State of California, by suggesting a relocation and accepting such relocation is estopped to contend that it is damaged by such relocation.

It is true that the doctrine of estoppel will be applied against a governmental agency where justice and right require it. (Calif. Cigarette Concessions, Inc. v. City of Los Angeles, 53 Cal.2d 865 , 3 Cal.Rptr. 675 , 350 P.2d 715 ; Market St. Ry. Co. v. California State Bd. of Equalization, 137 Cal.App.2d 87 , 290 P.2d 20 ; Lorenson v. City of Los Angeles, 41 Cal.2d 334 , 260 P.2d 49 , 53 ; Farrell v. Placer County, 23 Cal.2d 624 , 145 P.2d 570, 572 , 153 A.L.R. 323 ; La Societe Francaise De Bienfaisance Mutuelle v. California Employment Com’r, 56 Cal.App.2d 534 , 133 P.2d 47, 58 ; California State Board of Equalization v. Coast Radio Prod., 9 Cir., 228 F.2d 520, 525 ). It is also true that the authority of the agent alleged to have created the estoppel must appear. (United States v. Hoffart, 8 Cir., 256 F.2d 186 ; Sanders V. C. I. R., 10 Cir., 225 F.2d 629 , cert. den. 350 U.S. 967 , 76 S.Ct. 435 , 100 L.Ed. 839 ; United States v. State of Wash., 9 Cir., 233 F.2d 811 ; People v. Harter Packing Co., 160 Cal.App.2d 464 , 325 P.2d 519 ; California Horse Racing Bd. v. Los Angeles Turf Club, 111 Cal.App. 2d 933 , 245 P.2d 327 .) It is not necessary that the Court consider the authority of the agent unless it appears his acts were sufficient, if authorized, to create an estoppel.

The burden of proving waiver or estoppel is upon the party asserting it. (Atha v. Bockius, 39 Cal.2d 635 , 248 P.2d 745 ; First Nat. Bank of Fleming, Colo v. Petzoldt, 10 Cir., 262 F.2d 540 ; Cedar Creek Oil & Gas Co. v. Fidelity Gas Co., 9 Cir., 249 F.2d 277 , cert. den. 356 U.S. 932 , 78 S.Ct. 775 , 2 L.Ed.2d 763 ; Freedman v. Concordia Star, 2 Cir., 250 F.2d 867 ; Girard v. Gill, 4 Cir., 261 F.2d 695 ; Crosley Corp. v. U. S., 6 Cir., 229 F.2d 376 ).

Circuit Judge Barnes, in Matsuo Yoshida v. Liberty Mutual Insurance Co., 240 F.2d 824, 829 (9 Cir., 1957) pointed *48 out the distinction between waiver and estoppel:

Circuit Judge Stephens, in California State Board of Equalization v. Coast Radio Products, 228 F.2d 520, 525 , (9 Cir., 1955) stated the elements of estop-pel as follows:

As shown by the stipulation of facts, agents of both parties could at all times relevant, foresee that the existing highway occupied by Parcels 29A and 29C would be improved to full freeway standards and widened at a future date by reason of expected increases in traffic volumes and that the Division of Highways of California would contend that it would be unsatisfactory to have any portion of the fuel line under the traveled lanes of the widened highway; therefore, not only the “party to be estopped” but the party seeking estoppel, was in possession of the facts.

It is evident from the correspondence between the agents of the parties that there was no intention on the part of any agent of any party that any conduct of the agents of the California Division of Highways should be taken as a waiver of damages; nor did any agent of the plaintiff have any right to so believe. The correspondence indicates clearly that the relocation of the easement over the property of the State was suggested by its Division of Highways to reduce the possibility of interference by the fuel line with the State’s highway construction, and to minimize the effect of the sub-surface encroachment.

Further, we are unable to ascertain just how the plaintiff relied upon any conduct of the State’s Division of Highways to its injury. The correspondence indicates that the relocation proposed by the State was not more costly to the plaintiff than it would have been with the original location.

Finally, the correspondence mentions that the filing of a condemnation suit would not preclude negotiations for settlement. If the parties had intended the relocation to obviate damages for taking, there would not have been any need to include the State of California as a defendant, and there would not have been any need to negotiate for a settlement of the condemnation suit when filed.

It is our view that the State of California is not estopped to claim damages for the taking of its property as described in the complaint, designated as Parcels 29A and 29C.

We find there is a genuine issue of fact remaining in this case, to-wit, the amount *49 of damages to which the defendant State of California is entitled by virtue of the taking herein.

The stipulation of facts contains certain matters referring to the measure of damages, and counsel for defendant has suggested that the Court make a finding fixing the measure of damages. On a motion for summary judgment, the Court is called upon to decide only whether a genuine issue of fact is presented to be adjudicated; it is not obligated, as a part of its decision on such a motion, to pass upon such issue, nor to set up the procedure by which, or the evidence upon which, it will make its decision as to such issue. Such matters are properly the subject of pre-trial and trial. Accordingly, the Court will adopt from the stipulation of facts only those pertinent to this motion for summary judgment.