14 S.D. 558 | S.D. | 1901
This action was brought by the plaintiff to restrain the defendant from cutting off and diverting the water supply to which plaintiff claimed to be entitled. The action was tried by the court, without a jury, the findings and judgment were in favor of the plaintiff, and the defendant appeals.
The facts may be briefly stated as follows: The plaintiff is the owner of probate lot 109, of the town site of Deadwood. The defendant is the owner of probate lot 362, adjoining. In the spring of 1877,'before the town site was entered, one J. J. Williams and partner ran a tunnel mainly on what is now known as “Probate Lot 109”, but extending into probate lot 362, for the purpose of prospecting a gold placer mine. At or near the face of the tunnel
The grounds for a reversal áre thus stated by appellant in his brief: “First, that Scott could acquire no interest in this water right for the reason that probate lot 362 was not a part of the public domain at the time of the location of the pretended water right ; second that the water was not running in a definite stream formed by nature over or under the surface of the earth, and that the same was not a natural stream or spring, within the meaning of Section 2771, Comp. Raws; third, that Scott never parted with any interest that he might have acquired; fourth, that it shows, by a clear preponderance of evidence, that the water appearing upon probate lot 362 was precipitated by seepage and percolation, and was part of the soil; fifth, that no rights could accrue to the plaintiff by reason of the adverse use of such water; sixth that the decree of the court takes from the defendant his land and homestead.”
In our view of the case, the principal question to be determined is, did the waters encountered in the old and branch tunnels constitute a running stream, with well-defined banks, formed by nature under the surface or was the water that found its way to the face of the tunnels caused by seepage and percolation? It was found by the court, and is not disputed, that the water in the old tunnel and in the branch tunnel was encountered within the lines of defendant’s lot as now claimed by him. It appears from the evidence that the mouth of the tunnel is in a gulch or ravine, and that the land rises from this gulch in the direction of the tunnel, and at the point where defendant’s shaft was sunk
It is quite clear, therefore, from the authorities, that the stream of water contemplated is a running stream, having well-known and defined banks. The finding of the court that there was such a stream encountered near the face of the old tunnel and at the face of the new tunnel is not, in our view, sustained by the evidence. It seems to be conceded that the water found in these tunnels had
The next question presented is as to the sufficiency of the appropriation of the waters encountered in the tunnel by Scott in the spring of 1877. It is contended on the part of the respondent that assuming that under ordinary circumstances the defendant would be entitled to any water found within the limits of his own lot, and that the water encountered in the tunnel did not constitute a running stream, still the plaintiff was entitled to the water found in this
The main case relied upon to support the respondent’s contention is the case of Sullivan v. Mining Co., 11 Utah, 438, 40 Pac. 709, 30 L. R. A. 186. By the statute of Utah it is provided: “A right to the use of water for any useful purpose, such as domestic purposes, irrigating lands, propelling machinery, washing or sluicing ores and other like purposes is hereby recognized and acknowledged to have vested and accrued as a primary right to the extent of and reasonable necessity for such use thereof under any of the following curcumstances: First, whenever any person or persons shall have taken, diverted and used any of the unappropriated water of any natural stream, water course, lake or spring or other natural source of supply.” Section .2780, Comp. Raws Utah. It was therefore held that where a party had sunk a well upon the public domain, he had a right to the use of the water of such well; but, as stated by the court: “This right of the appropriator is, of course, subject to the rule of law which will permit the owner to sink an adjoining well on his own premises, although he should thereby dry up that of the first appropriator.” Under the statute of Utah, therefore, the right of the appropriator therein is a very limited one, and the decision, with the conclusion therein stated, does not sustain the contention of the respondent; for here the defendant has done precisely what the supreme court of Utah held he had a right to
Assuming that the common law has been modified in this state as laid down by the courts of the Pacific Coast states, still Scott could have acquired no rights to seeping or percolating waters found in
The respondent contends that the appellant is estopped from interfering with the plaintiff’s appropriation of the water as claimed for the reason that he permitted said waters to flow down to the mouth of said tunnel, and be taken by this plaintiff by its pipe line to its tank, and made no objection thereto until shortly before the commencement of this action, in 1898; or, in other words, that the defendant had full knowledge that the waters from said tunnel were appropriated and used by the plaintiff subsequently to 1890, and at no time made any objection to such diversion until about the time of the commencement of this action. But this contention is not tenable, for the reason that the' defendant had no cause of action against the plaintiff by reason of its taking the water from the mouth of the tunnel on its own land. So long as the defendant permitted the water to flow from his own land into the tunnel, he could not complain of its appropriation by the plaintiff; hence the plaintiff acquired no easement in the defendant’s property, and the defendant lost no right thereby to sink upon his own property a shaft to collect the percolating waters found therein. Crescent Min. Co. v. Silver King Min. Co., supra. The question now presented was fully discussed in that case, and it was there held that a party could not have maintained an action to prevent the plaintiff from using the water while he was permitting it to pass from its tunnel on his land. Ellis v. Duncan, 21 Barb. 230; Chatfield v. Wilson, 28 Vt. 49; Railroad Co. v. Peterson, 14 Ind. 112, 77 Am. Dec. 60; Frazier v. Brown, 12 Ohio St. 294; Trustees, etc., of Village of Delhi v. Yeomans, 50 Barb. 316; Id. 45 N. Y. 362, 6 Am. Rep. 100; Swett