180 N.W. 946 | S.D. | 1921
Lead Opinion
This action was instituted by plaintiffs to restrain the defendant from constructing and maintaining a certain ditch between two sloughs, one on the land of plaintiffs and the other on the land of defendant. Findings and judgment were in favor of plaintiffs, and defendant appeals.
At the conclusion of the trial, the appellant, among others, requested, and the court refused to make, certain findings of fact substantially as follows: That said ditch was constructed along the natural course of drainage from said upper to said lower slough, and that water had been known to flow from said upper to said lower slough along the line of said ditch; that said ditch was cpnstructed along and was a deepening- of a natural ravine or cut in the bank of said upper slough. To which refusal appellant excepted.
The court, among others, made substantially the following-findings : That on the lands heretofore described as belonging* to the defendant and extending upon other lands there was and is a large slough or lake bed covering approximately 70 acres of land; that said slough is usually filled with water from 2 to 5 feet deep; that at the time of the commencement of this action the water thereon was approximately 1 to 4 feet deep; that said slough bed received the water from a large watershed, covering several hundred acres of land, draining into said slough for a distance of 2 to 3 miles; that in the springtime from snows and heavy rains surface waters accumulate and gather in said slough; that at the time of the commencement of this action there was and now is on the lands of respondent a depression or piece of low land not to exceed 30 acres in extent, usually fit for hay or meadow; that in ordinary seasons said slough bed or hay meadow
It appears from the record that the said' slough bed situated upon the lands of respondents is surrounded by high banks, and that additional water thrown thereon into said slough do not and cannot escape therefrom and spread our or pass over other lands.
We have carefully examined the evidence preserved in the record, and are of the view that the same is sufficient to support the findings of the trial court. We are also of the opinion that the evidence sustains the conclusion that there is not, and never was, any natural water course between the two sloughs in question, and that appellant had no legal right to cut the natural embankment between said sloughs with a, ditch, thereby permitting the waters from the said slough upon the lands of appellant to
The facts in this case, as found by the trial court, are not within the reason of the rule announced in Thompson v. Andrews, 39 S. D. 477, 165 N. W. 9. The facts of this case are substantially in accord with those in Venner v. Olson, 40 S. D. 585, 168 N. W. 740, Anderson v. Drake, 24 S. D. 216, 123 N. W. 673, 27 L. R. A. (N. S.) 250, and Boll v. Ostroot, 25 S. D. 513, 127 N. W. 577.
The fact that the larger slough on appellant’s land is crossed by a highway grade or embankment is wholly immaterial so far as any 'of the issues of this case are concerned.
Finding no error in the record, the judgment and order appealed from- are affirmed.
Dissenting Opinion
(dissenting.) I am unable to concur in .the foregoing opinion. I believe that the undisputed facts of this case are such that, when we apply thereto the law announced in Thomlpson v. Andrews we must reverse the judgment of the trial court. My colleagues refer to Anderson, Venner, and Boll -cases, and declare the facts in this case substantially in accord with the facts in those cases. In the Anderson case, the decision of this court turned on the fact that the water in question was not “surface water.” In the other two cases, it was sought to conduct the water out of basins into drainage courses, into which water from these basins had never flowed. It is true that, in the Anderson case, we said that permanent waters could not be artificially drained even through a ditch in the natural channel; but we also said that we did not wish to be understood as holding that ponds or sloughs of a temporary nature, could not be drained for purposes of husbandry, or as holding that waters which would naturally seep and flow in a fixed direction could not be hastened in such direction -by a ditching, even if by so doing more water would be discharged on the servient estate than would have been without ditching.
This court will take judicial notice of matters of current history' and of local geographical conditions such as the general conditions of the surface waters of the state during' years past. We must therefore take notice that, for a long period prior to about the year 1913, the amount of surface water in this state
In Thompson v. Andrews, we said:
“The lower landowner cannot sit back like the 'dog in the manger’ and say to his neighbor: You had no easement under which you had a right to discharge waters from your lands across mine, and I will therefore not permit of such discharge even though it will result in no material damage to me.”
The trial court found that plaintiffs are the widow and minor children of a deceased person, and the owners of but one quarter of land, of which a portion of the lower slough is a part; while the defendant is the owner of much other property than the landi referred to in this action, and is a well-to-do and prosperous farmer. I am at a loss to understand upon what theory it could be held that the above facts, if true, are material; and I am fearful that the trial court, because of his splendid virtues, lost sight of the law through his mistaken sympathy for the widows and orphans.
While the facts of this case bring it in line with the case of Thompson v. Andrews, and the defendant had ¿n easement to