26 S.D. 307 | S.D. | 1910
This cause is before us upon rehearing, the former opinion of this court being found in 15 S. D. 519, 91 N. W. 352, and we refer to such opinion for a statement of some of the facts found by the trial court. In such opinion it was said; “Appellants’ first contention is 'that their water right located March 23, 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 Laws Dak. 1881, c. 142; third, that the part of the judgment appealed from is in any view erroneous because it ignores the riparian rights of plaintiffs.”
Appellant makes no issue, upon this rehearing, as to the correctness of this court’s former holding upon the second con
The appellants, upon this rehearing, complain of but two matters determined by the former opini'on of this court. Appellants contend that the court was in error in its former decision, wherein it held that the riparian rights of’ Jolly dated from the time of his entry upon his lands; appellants contending, as -they did upon the first hearing before this court, that such rights date from date of patent. We are fully satisfied that the former decision of this court is correct; in fact, we do -not believe that it is .at this date an open question, although there were some early decisions to the contrary. In addition to the authorities cited by this court in its former opinion, we would cite section 658 of Farnham on -Waters and Water Rights, p. 2049, as well as the authorities cited in such work.
Appellants further contend that, conceding Jolly’s rights as riparian owner were superior to those of the plaintiff corporation, yet his said rights as riparian owner were not superior to the other -plaintiffs’ rights as riparian owners, and that, therefore, that part of the judgment appealed from, wherein the trial court adjudged that said “Jolly has a prior right to the use of said waters
It is the contention of the appellants, as we understand the same, that, at least as against the riparian rights of plaintiffs other -than plaintiff corporation, the riparian rights of Jolly can have no precedence; that in law there is no precedence or priority as between the riparian rights to irrigate lands; and that the court was therefore in error in decreeing such priority, as well as in fixing the amount of water to which Jolly should have such prior right. The appellant further contends that the court was in error in attempting to fix the amount of water to- which Jolly would have a right superior to the rights of plaintiff corporation.
To a clear understanding of the last point raised, we would call attention to the facts as stated in the former opinion of this court, and will also note that there were no findings whatever giving the amount of water flowing down the stream, or the number of persons holding riparian rights along said stream, and nothing whatever upon which it would be possible for -the court to base a finding as to what would be a reasonable use of water
A different question arises, however, as between Jolly and those plaintiffs who owned lands riparian to such stream, and who entered upon the 'same, either in person or through their grantors, prior to the law of 1881. It may be that the trial court would have been fully justified in omitting any reference to the riparian rights of plaintiffs, owing to the condition of the pleadings herein; but when such court undertook, in any manner, to make an adjudication pertaining to the riparian rights of the plaintiffs, they certainly are in position to question such adjudication upon this appeal.
What then are the rights of the various riparian owners as between themselves? We do not think it is necessary to quote largely from, or to cite, a large number of authorities in support of the propositions which we deem to be established as the riparian law of this country. The riparian law recognizes no riparian rights whatever as gained through prior settlement or appropriation. The riparian rights of the owner are the same whether his possession of lands antedates or is subsequent to the possession of other riparian claimants. In fact, these rights are appurtenant to the land to be called into use whenever a person lawfully possessed of the use of the land may see fit to exercise such right. These rights of riparian owners have at all times been divided into two classes, dependent upon the use to which
It follows, from the above, that the defendant Jolly gained no prior or -superior rights over other riparian owners in the use of
The trial court was -therefore in error in adjudging that defendant Jolly had any rights superior, to use of water for irrigation, over those plaintiffs who possessed riparian lands, either to the extent of xoo miner’s inches or to any extent whatsoever.
The conclusions of the trial court were certainly inconsistent. We find therein certain conclusions fully sustaining the part of the judgment appealed from, and then as the final conclusion we find the following: “Nor shall 'anything in said judgment contained be construed to interfere with the right of said Joseph Jolly, or any other owner of lands riparian to Rapid creek, settled upon or entered prior to the said appropriation and location of the waters of said stream by the plaintiffs- and their predecessors in interest, to irrigate their said lands from the waters of said Rapid creek through the said Cyclone ditch.” A judgment conforming to such conclusion would have been correct.
The judgment of the trial court is modified in part, and' -the cause remanded to such court, with directions -that it modify its judgment to conform to the views expressed herein. Ret no costs be taxed herein.