15 S.D. 519 | S.D. | 1902
Lead Opinion
This is an appeal from the part of a decree in this case adjudging to the defendant, Joseph Jolly, the right to ioo miner’s inches of the water of Rapid creek, as prior and superior to the right of the plaintiffs to the water of said creek. The action was brought by the plaintiff’s to restrain defendants from diverting the waters of Rapid creek from the plaintiff’s ditch, or in any manner interfering with the plaintiff’s right thereto.
The court found that the plaintiffs and their predecessors in interest appropriated the waters of said creek to the extent of 1,300 miner’s inches on the 23d day of March, 1882, when the'notice of their appropriation of the water of said creek was posted. The court further found that the defendant Jolly settled upon land situated on said creek on the.3d day of February, 1879; hied a declaratory statement therefor on the 3d day of April, 1880; and made cash entry thereof' under the pre-emption laws of the United States on August 15, 1882; and he received the government patent therefor, bearing date July 30, 1884, containing the usual condition or reservation, “subject to any vested and accrued water rights for mining, agricultural, manufacturing and other purposes.” And the court concludes, as a matter of law, thafthe defendant Jolly having made a settlement upon the land owned by him prior to the location and appropriation of the waters of Rapid creek by the plaintiffs and their predecessors in interest, and prior to their settlement upon or entry of their said riparian lands, and the said land of the defendant Jolly being riparian to said creek, the said Jolly has the prior right to the use of the said water from the said stream, to the amount of 100 miner’s inches, for the irrigation of.his said riparian lands; and that
It will thus be seen that two important questions are .presented for the determination of the court. First. When did Jolly acquire the rights of a riparian owner as against the plaintiffs ? Second. Has the riparian owner the right to use the waters of a creek or stream flowing over or along his land, for irrigating purposes, without making an appropriation of the same in the matter prescribed by the law of the state? Appellants’ first contention is that their water right located March 23d, 1882, is prior and superior to the riparian rights of defendant Jolly, acquired by his final proof on August 15, 1882, under the pre-emption laws of the United States; second, that the riparian rights were abolished and abrogated by the water right law of 1881; third, that, the part of the judgment appealed from is .in any view erroneous because it ignores the riparian rights of the, plaintiffs.
It will be observed tha,t the plaintiffs take the position that Jolly acquired no rights as against them prior to his final proof .and en
Section 5464, Comp. Laws, provides: “Any person settled upon the public lands belonging to the United States, on which settlement is not expressly prohibited by congress, or some department of the general government’, may maintain an action for any injury done the same, also an action to recover the possession thereof, in the same manner as if he possessed a fee-simple title to said land.” It will thus be seen that the rights of a pre-emptor who has settled upon lands subject to private entry are fully recognized and protected, by the law of this state, prior to his final entry and purchase of the land and the receipt of the patent therefor. 'It is quite clear that Jolly, at the time he made his declaratory statement, if not at the time of his settlement upon the land, acquired the rights of a riparian owner as against the plaintiffs, which subséquently appropriated the waters of Rapid creek. The learned circuit court therefore decided correctly in holding that Jolly’s right was prior and superior to the rights of the plaintiffs.
The next question presented is: Did Jolly, as a riparian owner, have the right to use a portion of the waters of Rapid creek for irrigating his land? Upon this question the appellants contend: First. That section 2771 was repealed by the act of 1881. Second. If the section was not repealed, a riparian owner has not the right under the law to use water for the purpose of irrigation. Section 2771. provides as follows: “The owner of the land owns water standing, thereon, or flowing over or under its surface, but not forming a definite stream. AVater running in a definite stream, formed by nature over and under the surface, may be used by him so long as it remains there; but he may not .prevent the natural flow of the stream, or of the natural spring from which it commences its
The government has by these provisions recognized the right of appropriating water, and taking the same from its natural channel. The legislature of this state has properly provided for the making of such appropriations, but the right of the riparian owners to the. use of such waters, which have become vested, are such as are
This brings us to the last question, namely: Has the defendant Jolly, as riparian owner, a right to use the waters of said creek for the purpose of irrigation? Section 2771, before quoted, is a concise statement of the common-law doctrine applicable to the rights of riparian owners. This is • apparent from the fact that that section is a literal copy of section 256 of the proposed code for the state of New York, and the code commissioners of that state, in a note to that section, cite a large number of English and American decisions in which the doctrine of the common law as applied to riparian own
Certainly the plaintiffs, as subsequent appropriators, have no
The evidence not being before us, we cannot say that the ioo inches allowed Jolly was execessive. The judgment of the circuit court is affirmed'.
Concurrence Opinion
(concurring specially). The riparian rights of the defendant Jolly are correctly determined in the foregoing decision, for the reason that he settled upon his land before the act of 1881 took effect. In my opinion the legislature intended by that act to substitute the law of appropriation for the common law relating to the waters of streams and creeks. It seems to me the act should be regarded as an appropriation of such waters by the territory; and that titles to lands settled upon since it'took effect are subject to the right of appropriation.