8 S.D. 87 | S.D. | 1895
Lead Opinion
While some question is made as to the sufficiency of the description as set out in the complaint, we think it is sufficiently definite for the purpose of this action, and shall treat the complaint as alleging that the plaintiff, who is now appellant, was at the time mentioned the owner of a parcel of land upon which was located a spring of water, and that without his consent and against his objection the defendant removed from said spring and hauled away a large quantity of water for his own use and for purposes of sale, and that the value of the water so taken was $500, for which amount judgment was demanded. At the trial the court sustained defendant’s objection that the complaint did not state facts constituting a cause of action, and rendered judgment for defendant. Plaintiff appeals.
The grievance complained of is not the trespass upon or injury to plaintiff’s real estate, but the asportation of water issuing from said spring, and claimed to belong to plaintiff.
While it may not be technically correct to say that the landowner is the absolute owner of percolating waters gathered into a spring or well, such is often the expression of the courts and text writers; and probably means what, in respect to water, is practically equivalent to ownership, — -the exclusive right to use and dispose of it. While the precise question presented by this case appears to be novel, there are many cases which recognize the right of the owner of land upon which a spring so appears to sell and dispose of the right to all or a portion of
This case does not present the question of whether, after trial, a judgment for defendant ought to be reversed, because on the facts proved the plaintiff ought to have had a judgment for nominal damages. The question here is purely a legal one. To sustain this judgment we must say as a matter of law that the facts stated in the complaint do not constitute a cause of action; that they do not show aright in plaintiff and a violation of it by defendant. For the reasons stated we are of the opinion that the circuit court was wrong in the ruling that the complaint did not state facts constituting a cause of action. Its judgment for defendant following such ruling is reversed, and the case remanded for a new trial.
Dissenting Opinion
(dissenting). No trespass upon or injury to real property being alleged, and no damages being claimed, it is, in my judgment, obnoxious to the creative plan, and as