143 N.W. 959 | S.D. | 1913
Action in the nature of ejectment, to recover possession of certain lands upon which were situated a dam, head-gate, and irrigation ditch in possession of the defendant, and for damages.
The answer was a general denial, and in addition sets up the 6 and io year statutes of limitation, and a 20-year prescriptive title; pleads that the defendant became a corporation on the 30th day of July, 1900, for .the purpose, among other things, of taking over, acquiring, maintaining, and operating the water right, dam, and irrigation ditch, and using and disposing of water flowing therein, for irrigation and other useful purposes; alleges the purchaser of water-right locations made in 1886 and in 1890 from certain locators; alleges that the defendant purchased, constructed, and now maintains and operates more than 25 miles of extensions and laterals from said ditch, for irrigating lands of defendant’s stockholders, constructed at a cost of $15,000; pleads that plaintiff’s demands are barred by the statute of limitations, and that the plaintiff should be estopped by his laches from attempting to enforce his claim for possession of and damage to the property upon and across which said dam, -head gate, and ditch are situated.
By stipulation of parties the action was tried to the court without a jury, in November,' 1909. The trial court by its decision found that from the 26th day of February, 1883, to the 31st day of October, 1906, plaintiff was the owner of an undivided one-half interest in the land, and from the 31st day of October, 1906, to the time of the trial, had been the sole owner in fee of the whole o.f said tract of land claimed by him, upon which were situated the dam, headgate, and portion of the ditch in possession of defendant; that while the plaintiff, his co-owners, grantors, and predecessors in title were in .posession of the said premises, and about the 12th of July, 1886, George Hunt, John P. McElroy, and John R. Brennan, without the consent, knowledge, or acquiesence of any of them, went upon said premises and .posted a written notice thereon at a point on the north bank of Rapid creek, claiming 2,000 miners’ inches of the waters of said creek measured under six-inch pressure; that thereafter, and on or about the 12th of July, 1890, John P. McElroy, George Hunt, and James M. Woods, without the knowledge, acquiescence, or consent of the owners of said land, entered upon said premises and posted a
Findings and this judgment or order were entered on the 27th day of November, 1909, and thereafter, on November 22, 1910, a jury was impaneled and sworn to assess .plaintiff’s damages pursuant to said interlocutory judgment, and witnesses were sworn and testified, without objection, as to the value and quantity of plaintiff’s land appropriated and used for the purpose of said dam, headgate, and ditch, and the damages to plaintiff occasioned thereby; and, plaintiff offering no evidence in opposition, the court on its own motion directed the jury to return a verdict in the sum of $25 damages upon undisputed evidence; and, the jury having returned such verdict, the court thereupon entered its judgment in favor of plaintiff and against defendant for the
From these orders, judgments, and decrees, and an order overruling its motion for a new trial, defendant appeals, and assigns as error insufficiency of evidence to sustain the findings of the trial court, together with alleged errors of law occurring at the trial in receiving certain evidence. The record on appeal was -settled under the provisions of chapter 15, Raws 1911, and no question is raised as to the regularity of such settlement. Sufficient and proper specifications of error appear to have been filed in the lower court, and the motion for a new trial was based upon such -specifications of error and the settled record.
Upon the motion for a new trial, defendant, appellant here, presented to the trial court, and seeks to have reviewed upon this appeal, the question of the sufficiency of the evidence to sustain the findings of fact.
Plaintiff, who is respondent here, relying upon the language of this court in Barcus v. Prokop, 29 S. D. 39, 135 N. W. 756, urges that the sufficiency of evidence is not before this court for the reason that the motion for a new trial, attempting to raise that question, was not founded upon a statement of the case with exceptions, settled under section 305, Code of Civil Procedure. While the language of this -court in the Prokop Case would perhaps warrant respondent’s contention, yet in view of the con-
Defendant, appellant here, presents but three questions upon this record: First. ■ Is plaintiff’s action barred by the 6 or io year statutes of limitations? Second. Is it barred by 20-year prescription? Third. Did the trial court commit reversible error in receiving in evidence, as part of the cross-examination of defendant’s witness, portions of the records in certain condemnation proceedings instituted by defendant against parties other than plaintiff ?
Respondent upon this appeal, does not question the right of. the defendant corporation to exercise the power of eminent domain, but places his contention solely upon the fact that the defendant has not sought to exercise that power, and that both defendant and its alleged grantors were from the beginning mere naked trespassers; that their possession was subordinated to the right and title of the plaintiff, who was the legal owner, and that such possession could not ripen into a title by prescription.
The plaintiff Johnson has also appealed from the final judgment, and though appearing on the 'calendar as a separate appeal, such appeal will also be included and determined in this decision.
In the Faulk Case, supra, this court held that a railway company, though a naked trespasser, and wrongfully in possession of real property, might maintain proceedings by way of condemnation in the exercise of its powers of eminent domain, and that compensation or damages should be assessed as of the date of the action, and not as of the date of the taking possession of the property by trespass.
Upon this appeal the questions of the regularity of the proceedings had, or of the sufficiency of the pleadings for the purposes of the condemnation proceedings, are not presented for review. Neither is the question of the validity of defendant’s alleged water right, so far as compliance with the necessary statutory forms and procedure is concerned, before this court on this
No question of a right to damages except such as may accrue through the taking of plaintiff’s property for a public use is involved on this appeal, and we do not decide anything as to such right. No- evidence was offered by plaintiff as to the value of the use of the land in controversy while occupied by defendant, and such damages, even if claimed in the complaint, appear to have been abandoned. Plaintiff’s appeal rests upon the propositions that the court erred to his prejudice in allowing defendant to proceed by way of condemnation, and in the final judgment ordering a dismissal of plaintiff’s action upon payment of the damages awarded in the condemnation proceeding.
We are of the opinion the trial court erred in the conclusion of law that plaintiff is not entitled to maintain the action of ejectment but should be relegated to his action for damages. We are of opinion the trial court did not err to plaintiff’s prejudice in permitting defendant to proceed by way of assessment of damages as in condemnation proceedings, but that the final judgment is defective, and does not properly protect plaintiff’s rights. The findings of fact and the record before us are sufficiently full and complete, however, to enable this court to ascertain the rights of the parties, and to direct the entry of a-proper judgment. The case, therefore, will be remanded to the trial court, with directions to enter conclusions of. law that plaintiff is entitled to maintain his action in the nature of ejectment, and to a judgment awarding him possession of the property involved, with costs, but that the enforcement of such judgment be suspended pending condemn-a