22 S.D. 242 | S.D. | 1908
This action was instituted by the plaintiffs to restrain the defendants from diverting the waters of Crow creek so as to interfere with the rights of the plaintiffs to the use of the same. Findings and judgment being in favor of the plaintiffs; the defendant Elizabeth Rebbe has appealed. The original complaint was drawn upon (the theory that there was an existing contract between the defendants Rebbe and (wife and the grantors of these plaintiffs whereby the defendants Rebbe had a right to the use of sufficient of the water of Crow creek for Ithe ¡irrigation of 15 acres of their land underlying plaintiffs’' ditches. The defendant Rebbe answered, admitting the execution of the contract as alleged in the plaintiff’s complaint, but denied that he had any authority to do so, and alleged that his wife owned the land referred to. The defendant Elizabeth Rebbe answered denying all of the allegations of the complaint. Subsequently and before the trial the plaintiffs obtained leave to file and 'serve an amended complaint, which was thereupon served and filed. The defendants separately answered
It is contended by the appellants that the amendment is not within the discretion of the court, as it changes the character of the action even though such amendment was made some five months before the trial, and that the amendment in question did change the plaintiffs’ cause of action.
It is contended by the respondents that an amendment made prior to the trial may change substantially the claim or defense, and that the only limitation upon the power of the court to allow amendments is that an amendment made at or after the trial so as to conform to facts proven, or facts in support of which proof is offered, must not substantially change the cause of action or defense. We are of >the Opinion that under the decision made by this court in the case of Murphy v. Plankinton Bank, 18 S. D. 317, 100 N. W. 617, the respondents are right in their contention. In that case after a careful review of the authorities this court reached the conclusion that the limitation prescribed in the statute only applied to amendments made on or after the trial, and hence that an amendment which changed the nature of ¡the action could be made before the trial within reasonable limits. It is true the plaintiffs 'in-their original complaint claimed that the defendants were only entitled to sufficient water to irrigate 15 acres under a contract set out in the complaint, and that in their amended complaint they allege that they are the owners of a certain water right, and are entitled to ithe amount of water designated in the notices of location therein. We are unable ho perceive in what respect the defendants were injured or prejudiced by the amendment. It is not suggested that any defense of the bar of the statute ,of limitations would be cut off by /the amendment, or that the defendants would be subjected to more expense or inconvenience in proving their defense
The plaintiffs claimed title (x) to the waters of Crow cre.ek by the appropriation and diversion of the waters of ’said Crow creek and by means of two ditches known as the “Stotts” and ‘“Miller & Mulholland” Iditches prior to the settlement upon the lands by the defendant or her grantors, and the ownership of said ditches by Ahem; (2) that for more than 20 years prior to the institution of this action they and their grantors were ¿n .sole, continuous, and •exclusive possession of, claiming the right to the waters of, Crow creek flowing through said Stotts ditch.
The defendant and appellant claims ithe right to the waters of Crow creek (1) by reason of the settlement thereon as riparian owners by her grantors, Willis E. Young and Lilly A. Walker, prior to the location of any valid water rights acquired by the grantors of the plaintiffs by means of their said appropriation and diversion (of the waters ¡of (said Crow creek; (2) that at the time of the appropriation and diversion of the waters of Crow creek by the grantors of the plaintiffs, the said locators of the said water rights were trespassers upon the land located and claimed by the said Willis W. Y,oung and Lilly A. Walker; (3) that if George W. Stotts located the Stotts ditch water right,' he conveyed his- interest therein to one .of (the grantors of the defendant; (4) that the Stotts water right was in fact located by Samuel and John Stotts, who conveyed their interest to the defendant prior to the commencement of this action-; (5) that the plaintiffs and their grantors were not in the exclusive, open, and notorious possession
It will he observed that the principal questions involved in thi-s case are questions of fact as to tire priority of the location of the water rights and ditches, under which the plaintiffs claim the waters of said 'Crow creek and the entries made upon the lands riparian to said creek made by the grantors of the defendant.
The court in its findings of fact, among other things, found, in substance, that on February 20, 1880, Elliel Miller and Thomas Mulholland entered upon the vacant and Unoccupied public lands of the United States and made a water right location, claiming the right .to divert the waters of Crow creek for irrigation, domestic, and other uses to .the extent of 320 inches, miners’ measurement, and that they perfected their water right location, and that one-half interest in the same was by means of mesne conveyances vested in the plaintiffs. The court further finds that on the rst day of February, 1880, one George W. Stotts settled upon a tract of land on Crow creek and that prior thereto the said George W. Stotts, by means of 1a head gate and ditch connected therewith, diverted the waters of Crow creek for the purpose of irrigating said land for domestic and other purposes, claiming 150 inches of the waters of said creek; that said Stotts perfected his location tod irrigated at least 120 acres of his land by means of said ditch and water right, and that in May, 1886, he and his wife conveyed the lands and water right to the grantors of the plaintiffs, and that the grantors
It will thus be seen that the Miller and Mulholland water right, under which the plaintiffs claim title, was located prior to the set-tement made upon Crow creek by either Willis E. Young or Lilly A. Walker, the grantors of the defendant, land that the Stotts ditch and water right, as located by George W. Stotts, was located prior to the settlement of either of defendant’s grantors. The evidence in regard to the time of these locations of the water rights and the settlements upon the lands by defendant’s grantors is sharply conflicting, and this court, after a careful examination of the same, is unable to say that there was a preponderance of' evidence in favor of the settlements of the grantors'of the defendant, prior to the location of -the water rights, under which the plaintiffs claim the right to /the said waters of Crow creek.
The evidence is very voluminous, extending over several hundred pages of printed abstract, and no useful purpose would he ■served in reproducing the same in this opinion, and its reproduction would extend Ifehis opinion to an unreasonable length. The rule is too well settled in this jurisdiction to require the citation of authorities that the findings of the court are presumptively correct, and, unless there is a clear preponderance of evidence against the findings of the trial court, such findings will not be disturbed by this court. Assuming (therefore that the court’s findings are correct and that ithe water rights, under which the plaintiffs claim title,
Section 2339 of tire Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1437) provides that: Whenever, by priority of possession, rights to the use of water- for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, (the possessors and ownérs of such vested rights shall be maintained and protected in the same. * * *” And section 2340 (U. S. Comp. St. 1901, p. 1437) Pro" vides: “All ipatents granted, or pre-emotion or homesteads allowed, 'shall be subject to any vested and accrued water rights, or-rights to: ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized iby the preceding section.”
In Scott v. Toomey, 8 S. D. 639, 67 N. W. 838, after quoting the above sections, [this court-says : “This ha's been the law in the Black Hills country, by custom and the decision of the courts, since February 28, 1877.” The rights of the parties must therefore be determined by priority of location as between the w.ater right of the defendant and the pre-emption right of the plaintiff’s' grantor. Sturr v. Beck, 6 Dak. 71, 50 N. W. 486; Same v. Same, 133 U. S. 541, 10 Sup. Ct. 350, 33 L. Ed. 761.
The Supreme Court of the United States in Atchison v. Peterson, 20 Wall. (U. S.) 507, in-discussing a similar question said: “Tlii-s- equality of right among all the proprietors on the same stream would have been incompatible with any extended diversion of the wafer by one proprietor. * * * But the government being the sole proprietor of all the public land's, whether bordering on streams or otherwise, there -was no occasion for the application of the common-law doctrine of riparian .proprietorship with respect to. the waters of (those streams.”
The court .concludes a's a matter of law “ (i) ¡that the plaintiffs are the owners of an undivided one-half interest in the Miller and Mulholland ditch and water right, and are entitled to (the prior and exclusive right by reason thereof to divent the waters of Crow creek to the extent necessary and proper (for domestic uses, and the irrigation of from one hundred and twenty-five to one hundred and thirty acres of land, not exceeding, however, .an undivided one-half of the present capacity of the said Miller and Mulholland ditch, with the right to go upon the lands over and across which the said ditch (and headgate are located for (the purpose of maintaining ’and operating the same; (2) that the defendant Elizabeth Rebbe is entitled, as a riparian owner, to divert from the waters of Crow creek, or the springs connected with and adjacent thereto, isuch water as may remain in said creek after supplying the Miller and Mulholland water right as herein provided, to the extent that may be necessary and proper for the irrigation of her (land riparian to said Crow creek, hereinbefore described; but not exceeding in the aggregate more than thirty (30) .inches, miner’s measurement, of ■the said water; (3) that the plaintiffs are owners by prescription of the Stoitts ditch and water right, and entitled to divert from the waters of Crow creek, through and by means of said Stotts ditch, such water as remains in said Crow creek after supplying the Miller and Mulholland water right and the Rebbe riparian right, not exceeding thirty (30) inches of isaid water, as herein provided, with the right to go upon the land over (and across which the said ditch and headgate are located, for the purpose of maintaining and operating the same.”
It is further contended by the appellant that the plaintiffs were not proper parties to this action, as they had conveyed the property by trust deed to James P. Prindle prior to the commencement of this action to .secure the payment of $5,500 loaned by the said Prindle to the plaintiffs1 and secured by trust deed. But an examination of such deed discloses tire fact that no power of sale was vested in the trustee, and that in case of default in the payment of the principal, interest, etc., plaintiffs were required through their trustee to make application to the (court by a bill in equity ifor a decree foreclosing the same, thus making the trust deed in effect under our Code a mortgage constituting only a lien upon the property, and leaving the legal 'title still in the mortgagors. Langmaack v. Keith et al., 19 S. D. 351, 103 N. W. 210; McVay v. Tousley et al., 20 S. D. 258, 105 N. W. 932. There is therefore no merit to the contention of the .appellant that the plaintiffs are not proper parties.
In the view we take of the case it will not be necessary to determine the question as to the claim of the plaintiffs, that they were entitled to the waters of Crow (creek by reason of their 20 years’ use and occupation of the Stotts ditch, las under the findings of the court that ditch land water right 'was located, and the location perfected by George W. (Stotts, and the same conveyed by him to to the plaintiffs’ grantors, which was sufficient to vest the title so acquired by George W. Stotts in the plaintiffs and they succeeded to whatever rights he acquired by his location. As the court failed tó find in favor of the appellant as (to the transfer, by George W. Stotts to. either of her ’grantors, of the title acquired by him by virtue of his location of the Stotts ditch, the court necessarily by implication found against the appellant’s claim, the presumption being in the absence of ’an affirmative finding in favor of the appellant that the evidence was not sufficient to support the appellant’s claim. 4
Finding no error in the record, the judgment of the circuit couid and order denying a new trial are affirmed.