26 S.D. 466 | S.D. | 1910
This is a controversy concerning the use of water for irrigation from Redwater river, in Butte county, between the plaintiff as an appropriator and the defendants as riparian proprietors. Were the flow of water in Redwater river as ’ copious a-s the flow of redundant language in appellant’s abstract and .briefs, probably this litigation would not have arisen. Certainly less reason would have-existed for damming the stream.Perhaps there is in all water-right cases some mysterious relation between the quantity of water and the quantity of language- — a law of supply and demand which requires that the volume of language shall increase in direct ratio to the deficiency in volume of water. Whether this be so or not, it is certain- that the supply of
The allegations of the complaint are to the effect that the plaintiff owns the right to take 4„ooo miner’s inches of water from Redwater river for mining, milling, irrigating, and -domestic purposes, located by James Newland in June, 1878; that prior to the assertion of any rights to the waters of such stream by the defendants the plaintiff became the owner of other water rights theretofore located thereon; that the plaintiff has expended large sums in maintaining ‘and enlarging its ditches, its main ditch having been completed for a distance of 42 miles; that during the irrigating season all the water of the stream is required by plaintiff’s appropriation; that in December, 1894, the defendants wrongfully and in violation of plaintiff’s rights attempted -to locate a water right 12 miles above the plaintiff’s point of diversion; that they constructed ditches through which they have been taking large quantities' of water and using the same for irrigation and other purposes to the irreparable injury of the plaintiff and to its damage in the sum of $5,000; that the defendants will continue to so injure the plaintiff unless restrained by the court; that by reason of the peculiar character of plaintiff’s property, it being engaged in furnishing water to patrons, it would be extremely difficult to ascertain the extent of its damage; and that it has no speedy and adequate remedy in the ordinary course of law. Wherefore it demands damages in the sum of $5,000, a temporary and permanent injunction, together with costs and disbursements. The defendants answered denying all the allegations of' the complaint except that they claimed a water right on the Redwater river, and alleging that they owned a right to 1,000 miner’s inches, located by defendant Reed. Subsequently the court allowed the defendants to serve and file an amended answer, in which all the allegations of the complaint were denied except that defendants
The contention that the court erred in allowing defendants to serve and file the amended answer is not available, for the reason that such answer was superseded by the separate answers and ceased to have any effect upon the issues ultimately determined. Behrens Lumber Co. v. Lager, 25 S. D. 139, 127 N. W. 698.
The contention that the court erred in overruling the demurrers to the separate answers is not tenable. All the answers are the same in form; each containing certain denials and allegations stated as a defense and certain allegations stated as “a further defense and likewise by way of counterclaim.” The language of each demurrer was as follows: “ (1) Plaintiff demurs to the separate amended answer of the defendant * * * herein, and for cause thereof alleges that said separate amended answer does not state facts sufficient to constitute a defense to the cause of action set out in plaintiff’s complaint. (2) Plaintiff also, demurs to the further defense and counterclaim attempted to be set up in said separate amended answer, for the reason that the same does not state facts sufficient to. constitute any defense or counterclaim to the cause of action set up in plaintiff’s complaint.” As to all the portions of the answer not stated as' “a further defense and likewise by way of counterclaim,” the demurrer was properly overruled for the reason that such portions embraced general and specific denials of material allegations of the complaint. Hill v. Walsh, 6 S. D. 421, 61 N. W. 440; Cumins v. Lawrence Co., 1 S. D. 158, 46 N. W. 182. The remaining portions of each answer are as follows: “For a further defense, and this defendant alleges
It is contended the court erred in excluding evidence tending to prove that neither of the defendants nor any of his grantors had used water for irrigation by diverting it from the stream at a point within the boundaries of his land; it being claimed by appellant that section 278 of the* Revised Civil Code requires the point of diversion to be within the boundaries of the riparian proprietor’s premises. Section 278 is the same as section 256 of the New York Civil Code as proposed by the Code commissioners of that state. It reads thus: “The owner of the land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream. Water running in a definite stream, formed by nature, over or under the surface, may be used by him as 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 definite course, nor pursue nor pollute the same.” Among the authorities cited by the commissioners as the source of the clause “may be used by him as long as it remains there” — the clause relied on by the appellant — are Van Hoesen v. Coventry, 10 Barb. (N. Y.) 518, and Arnold v. Foote, 12 Wend. (N. Y.) 330. There is no suggestion in the report of the commissioners of an intention to change the common law respecting riparian rights. Therefore section 278 of our Civil Code should be regarded as merely declaratory of the common law as understood by the commissioners when their report was prepared.
In Arnold v. Foote, supra, the court said: “The doctrine of the common law in respect to the use of running waters is nowhere better expressed than by Chancellor Kent in his Commentaries, 3 Kent, 439. Every proprietor of lands on the banks of a river has an equal right to the use of the water which flows in the stream, as it was wont to run, without diminution or alteration. No proprietor has the right to use the water, to the
Construed as a condensed expression of the principles thus announced, section 278 does not sustain appellant’s contention. Riparian rights depend upon the location of the land with reference to the stream, not upon the method employed to use the water therefrom. The use of the water for irrigation necessarily involves a diminution of it; but this use must be with the least possible injury to others interested in the same stream. The area irrigated must be limited to riparian land and to the actual needs of the proprietor. Pie does not own the water; he has no control over what is not required for his own use; and he has no cause to complain so long as his use of the stream is not injuriously affected. Of course, these defendants could not divert water at a point above their riparian land in violation of the rights of any intermediate riparian proprietor, nor could they construct ditches through land other than their own without the owner’s consent;
The contention that the court erred in allowing defendants to introduce in evidence the complaint in an action wherein this plaintiff’s grantor was plaintiff and one Harrison was defendant is untenable. That was an action to recover for water used by Harrison; .the complaint showing the number of inches claimed to be used by tire plaintiff’s grantor at that time. The complaint was verified by the superintendent of the plaintiff’s grantor. It was competent as a written admission against such grantor’s interest and as such was 'admissible against the plaintiff in this action. 1 Jones, Ev. § 243. Moreover, -in view of the real issues involved and all the evidence, it was entitled to little or no weight, and, as the case was .tried without a jury, this court will assume that it was properly considered by the trial court in rendering its decision.
James Newland was the locator of plaintiff’s alleged water right. He was a witness on behalf of the plaintiff. One of the material issues of fact was the date of such location. Copies of Newland’s pre-emption proof were properly received as a part of his cross-examination and as independent evidence tending to prove a date later than that stated by the witness; he having fixed such date by reference to the time of his settlement.
Defendants offered in evidence .the answer in the forcible entry and detainer case of Tomlins v. Moore et al., which was verified by two of the defendants, in which James Newland was a defendant, and which contained these allegations: “That the de
It "is alleged in defendant Dorsett’s separate answer that he is the owner of a certain described tract of land settled upon by Thomas Short, July 13, 1877. To prove this allegation, defendants offered “the record of a deed from Thomas .Short to Mary Short, recorded in Lawrence county, in Book m, p. 419.” When
Defendants’ Exhibit R, a book apparently showing the accounts of the plaintiff’s grantor from 1884 to 1887, was offered as evidence of declarations against the interest of such grantor.
To sustain the allegation -that defendant Keets is the owner o-f certain described land settled upon by James H. Owsley April i, 1880, defendants offered certified -copies of the records of the General Lan-d Office showing an application to enter the same under the United States homestead laws by J. H. Owsley and a patent from -the United States to Joseph H. Owsley. To these offers plaintiff objected because there was no evidence that J. H. and Joseph H. Owsley were one and the same person. The objection was properly overruled. The patent itself affords abundant evidence that it was issued to the same person who made the application. It describes the same land and refers to the application by the number given it in the Deadwood land office, where it was filed. The issuing -of a patent to Joseph H. Owsley in the proceedings initiated by J. H. Owsley for the land described in the latter’s application; considered in connection with other recitals in the -patent, gives rise to the inference that -there was satisfactory evidence before the department 'showing that the applicant and patentee were one and the same person. The issuing -of the patent necessarily involved a finding to that effect by the department, and such finding was conclusive upon the circuit -court in ruling upon plaintiff’s objection. The contention that the evidence should have been excluded because Jhere was a variance between the proof and the pleading as to- the name of the person who made settlement upon the land now owned by defendant Keets i-s untenable, for the reason that the plaintiff did not object on that ground. If it had done so, the mistake in the pleadings might, and undoubtedly would, have been corrected by amendment. If the matter were -of any importance, amendment would now be permitted.
The trial court found that defendant Keets owns a certain described tract of land riparian to Redwater river, all of which is cultivable and can be irrigated with the waters of that stream, upon which his grantor made settlement November 20, 1876, and thereafter received a patent from the United States government; that defendant Keets owns another described tract of land i.11 the same situation, upon which his grantor made settlement April 1, 1878, and thereafter received a patent from the United States government; that defendant Keets owns still another tract in the same situation, except that only 20 acres of it can be irrigated, upon which his gran-tor made settlement July 10, 1885, and thereafter received a patent from the United States government; that defendant Dorsett owns a certain described tract of land riparian to Redwater river, all of which is cultivable and can be irrigated with the waters of that stream, upon which his grantor made settlement October 15, 1876, and thereafter received a patent from the United States government; that defendant Dorsett owns another described tract in the same situation, upon which his grantor made settlement July 13, 1877, and thereafter received a patent from the United States government; that defendant Dorsett owns still another described tract riparian to Redwater river, 115 acres of which are cultivable and can be irrigated with water from that stream, upon which he made settlement January 1, 1876, and thereafter received a patent from the United States government; that defendant Reed -owns a certain described tract of land riparian to Redwater river, all of which is cultivable and can be
Upon the pleadings and facts as found by the trial court it was adjudged: “(1) That the defendant Henry Keets is the owner and in the possession of the following described lands, which are cultivable and 340 acres of which can be irrigated with the waters of Redwater river, and all of which are riparian to the said river, to-wit. * * * (2) That the defendant David M. Dorsett is the owner, in the possession, and entitled to the possession of the following described lands, which are cultivable, and 395 acres of which can be irrigated by the waters' of Redwater river, and all of which are riparian thereto, to-wit. * * * (3) It is further adjudged and decreed that the said defendants, Henry Keets and David M. Dorsett, their heirs and assigns, have a right prior to that of the plaintiff, its successors or assigns, h> use and divert from Redwater river sufficient water, to-wit, one miner’s inch per acre for the proper irrigation of all the cultivable land upon each of the said tracts hereinbefore described, and also for domestic and agricultural purposes connected therewith, whether such diversion be made on the premises hereinbefore described, or at any point on said river above the same; and the right of the said defendants, Dorsett and Keets, to such prior use and diversion of the waters .of Redwater river is hereby forever quieted in them, their heirs and assigns, as against the plaintiff, its succes
In discussing the alleged insufficiensy of the evidence to justify the -decision of the trial -court, counsel for appellant has extended his argument far beyond the legitimate limits of the record on this appeal. The abstract embraces only one assignment of error relating to- that 'subject. It begins thus: “The court erred in making and signing the -decision -herein, for the said decision is contrary to the evidence and the law in this case; that the evidence is insufficient to- sustain the findings of fact therein-, as specifically set out in the written -objections thereto, served and filed July 26, 1904.” Following this statement are several specifications of the particulars wherein the evidence is alleged to be insufficient. The 'latter only require consideration. The motion for a new -trial having been made on a bill -of exceptions, -only su-c-h particulars wherein the evidence is alleged to be insufficient, as are -specified in the bill and embraced by -the assignments of -error, as printed in the abstract, are available in this court. Thompson v. Railway Co., 26 S. D. — , 128 N. W. 809; Whaley v. Vidal, 128 N. W. 331. Eliminating unnecessary repetitions, the allegations of insufficiency are (1) There was no evidence to show that either -defendant had any vested right or interest in and to the lands or to- the waters of Redwater river, set out in his answer prior to plaintiff’s appropriation. (2) That there is no evidence -to show any beneficial use of the water by either defendant prior to the plaintiff’s -appropriation. (3) There was no claim to- the water made by either defendant as a riparian own-er until -the amended answer in this- case was filed. (4) The plats of the township wherein defendant’s lands are situated were not filed until after plaintiff’s appropriation. (5) There was no evidence showing any conveyance from Thomas Short to defenant Dorsett. (6) There wa-s no- evidence- that James H. Owsley ever o-wned the land now owned by defendant Keets. (7) There was no evidence showing ho-w much 1-and was actually irrigated
What has been already said disposes of the fourth specification. The alleged defect in defendant Dorsett’s title, suggested by •the fifth specification, has been heretofore considered. The sixth specification merely points out the mistake in- Owsley’s name, found in the pleadings and inadvertently carried into- the decree. As has been shown, this variance was wholly immaterial. It could not have prejudiced any substantial right. The seventh specification, relating to the area of land actually irrigated, presents another immaterial matter. Plaintiff’s claim for -damages having been limited by stipulation to nominal damages,' the issue to be determined is the quantity of water to which each of the defendants will be hereafter entitled, not the amount which either has heretofore taken from the stream. The contention based on the eighth and last specification must be sustained. The court found .and adjudged that defendant Reed is the owner of a certain described tract of land, all of which can be irrigated from the, waters of Redwater river. The finding is not sustained by the evidence. It should have read that all the tract can be irrigated except 60 acres. The judgment should be modified to- correspond with the facts as established by the evidence.
The contention that the court erred “in- not stating the findings of fact and conclusions of law separately upon the issues raised by the allegations of the complaint, the -separate answers
The only remaining matter meriting attention is whether the decree or judgment -conforms to the facts and the rules of law applicable thereto. For the purposes of -this appeal, the facts must be deemed to be as found by the trial court, except as to the quantity of defendant Reed’s land which can be irrigated. So it is established that plaintiff’s appropriation- was located February i, 1879. This was prior to the enactment of the 1881 statute relating to water rights. But no- question as to the validity of plairftiff’s right, on that ground, arises on this appeal, for the reason that the court below assumed that an appropriation, located according to the customs of the country, created an enforceable right superior to riparian rights subsequently acquired, and defendants acquiesced in such conclusion by failing to- appeal. As the view of the learned circuit court on the proposition- is the law of this case, no opinion on the subject will be expressed in this decision. The Reed ditch, through which the defendants were taking water, having been subsequently located, their rights, by reason of such appropriation, are inferior to- those of the plaintiff and require no further consideration. As riparian proprietors, ’however, they have the right, as against the plaintiff, to use sufficient water for domestic purposes and for the irrigation of all ■the cultivable riparian land which can be irrigated, and which was
It appears from the decision of the trial court that the S. E. Ya of the S. E- Ya of section 12, the E. Já'of the N. É. Ya> and the N. E. Ya of the S. E. Ya °f section 13, township.7 N., range 1 E-, owned by defendant Keets, was settled upon July 10, 1885. As to this land Keets’ rights are subsequent and subject to the rights of the plaintiff. As heretofore stated, it should not be adjudged that either defendant' is entitled ¡to any specified quantity of water. Therefore, the third paragraph of the decree, as planted in the abstract, should be so modified as to read as follows: “It is further adjudged and decreed that the said defendants, Henry Keets and David M. Dorsett, their heirs and assigns, have a right prior to that of the plaintiff, its successors or assigns, to use and divert ■from Redwater river sufficient water for the proper irrigation of all the cultivable land upon each of the said tracts hereinbefore described, except the S. E. Ya »f the S. E. Ya of section 12, the E. of the N. E. Y> and the N. E- Ya of the S. E. Y of section 13, township 7 N., range 1 E., and also for domestic and agricultural purposes connected therewith, whether such diversion be made on the premises hereinbefore described, or at any point on said river above the same; and -the right of the said defendants, Dorsett and Keets, to such prior use and diversion of the waters of Redwater river, is hereby forever quieted in them, their heirs and assigns, as against the plaintiff, its successors- and assigns; and the plaintiff, its successors and assigns, their officers, agents, and employees, are hereby forever enjoined and restrained from in any