16 S.D. 451 | S.D. | 1903
This action by the corporate owners of a .prior water right to restrain the defendant corporation from maintaining a dam across Rapid creek at Rapid City, and from interfering in any manner with their use of the water for irrigation, agricultural, and domestic purposes, resulted in a judgment for plaintiffs, and defendant appeals.
While the evidence shows that respondents, or some of them, in the cultivation of their arid land, from year to year, have taken water from the ditch for irrigation and domestic purposes, there is nothing to show the amount of land irrigated, or the quantity of water required for such purposes by each or all of the persons entitled to its use. The evidence shows, 'and the court found, that respondents’ flume and ditch were located 10 miles below appellant’s dam, and that there are now in use several intervening ditches, by means of which the owners lawfully appropriated water prior to the rights of either party to this action. Notwithstanding an attempt to show that respondents would not be benefitted if the water was allowed to pass over and through appellant’s dam uniformly day and night, as the full supply would be exhausted by the owners of intervening ditches, it was conclusively established by competent testimony that appellant’s retention of the water during the day was the immediate cause of substantial injury alleged in the complaint. Respondent Buckingham testified in part as follows: ‘‘The character of the land is arid, and it is necessary to have the waters — the use of the waters — of this stream to raise hay, grain, and other crops. I have noticed for the last few years — from 1890, or thereabouts — that there has been a fluctuation in the flow of the water at different times of the day. We have more water at some portions of the day than at others. There is a scarcity in the morning. You can see the
Rapid creek is a nonnavigable stream rising in the mountains about 40 miles west of the city of Rapid City,.and empties into the Cheyenne river just below the riparian premises of respondents. At ordinary stages, and when unobstructed, there is probably something less than 1,800 inches of flowing water, which, by detention during the day, is sufficient to operate the
Modified in conformity with this view, the jndgment of the circuit court is affirmed. Bach party will pay its own costs in this court.