File No. 5043 | S.D. | Aug 5, 1922
On July 1, 1920, this plaintiff was the owner of the southeast quarter of section 2, township 108, range 52, Lake county, S. D.
The defendants Peter Norbeck, Andrew Marvick, and M. L. Shade were the state highway commission, Frank S. Peck, state highway engineer, G. E._Youngberg, assistant engineer, and D. D. Bidwell and Thomas Newton, contractors, and, with said engineer, in charge of building a state highway, a part of which ran east and west on the section line along the south side of said section 2.
The defendants, in constructing a state highway along the south line of the said section 2, and in grading the same, cut a ditch on the north side of the grade through this ridge or watershed, which extends east thereof along the north side of the grade to and along plaintiff’s land. It is plaintiff’s contention that defendants will continue to deepen this ditch, unless restrained by the court ,and will, through said ditch, turn a large volume of water from the basin west of said watershed and cause it to flow east onto his land; -that such water had no natural outlet toward his land ,and would never reach the same‘but for such ditch; and that his land will be greatly damaged thereby.
Plaintiff further contends that defendants should have taken proceedings to drain this basin west of said ridge, under the provisions of sections 8598 to 8604 of the Revised Code of. 1919. Nio actual damages are claimed by plaintiff, but plaintiff asks a temporary and permanent injunction against'such'theatened injury;
Defendants admit they are constructing a state highway, but deny that they intend to • or will dig the ditch any deeper than it then was, and deny that water will be conducted onto plaintiff’s land through said ditch, or that his land will be in any way damaged by reason thereof. Defendants further contend, and the -undisputed evidence establishes the following facts: That the water in these sloughs is surface water; that the ditch dug by -the defendants is a part of the highway construction, and is such an ordinary ditch as the good of the road would dictate; that it was made for the sole purpose of improving the highway and •obtaining the consequent benefit to the public; that it was not intended to benefit the owner of the land nor to injure plaintiff;
'From a plat made by plaintiffs engineers and' offered in-etfi'-dence by plaintiff at the trial, which purports to show the elevd1 tions of the natural surface of the land along this ridge and-'aidng the highway at the ridge and west of it, and also the number, location, and depth of the sloughs within the basin from which it is claimed the water will be thrown onto plaintiff’s land, -it'apr pears that, about 150 feet west of the point where the ditch o'n the north side of the highway crosses this ridge, there is a slo,ugh lying directly across said highway and extending for a short- .dis? tance to the north and south of it. This slough is nearly.250 feet wide, where it is crossed by the highway. The deepest point in it where the highway crosses is 1.3 feet lower than the bottom of the ditch at the point where the ditch crosses the ridge, and is 3.5 feet lower than the natural surface of the ground at the top of the ridge where this ditch crosses it. . The deepest point in this slough is on the south side of the grade, and is 1.8 feet lower than the bottom of the ditch where it crosses the ridge. This slough has an apparent average depth of from 1.5 to 2 feet; and a little less than one-half of it is on the north side of the grade.
About 250 feet west of this slough and about 40 to 50 feet north of the north line of the highway is another slough, which-will be hereafter referred to as the larger slough. The larger slough is quite long and -narrow, extending and sloping generally to the southwest, with its deepest point considerably south of the center of the slough, measuring north and south.
The lowest point shown in the natural surface of the land in this basin (outside the sloughs) is in the north line of the highway, directly south of the larger slough; and such depression appears to extend to the south; and this point in the north line of the highway is 2.5 feet higher than the lowest point in the larger slough. Therefore the water would have to be at least 2.5 feet deep in the larger slough before it would flow into the ditch on the north side of the highway at all.
It will be seen that, if the waters in the larger slough ever became high enough to reach the ditch on the north side of the highway, they would still naturally flow south if there was a culvert at that lowest point in the basin to permit them to cross the grade; otherwise they would have- to surmount a rise of 4 inches in the ditch to reach the small slough; and it does not appear from any competent evidence in the record that any waters from the large slough have reached or would reach plaintiff’s land by reason of this ditch through the watershed.
It is shown by the undisputed affidavit of the highway engineer that the small slough does not exceed an acre in extent; and, if the figures drawn on plaintiff’s plat by his engineer are in proper proportion—and it is presumed they are—the larger slough is not to exceed three times the size of the small slough.
There is no evidence in the record as to whether these sloughs are temporary or permanent in their nature, or to show whether the waters raised in them after heavy rains or during the wet seasons of wet years, or in what direction the sloughs would flow or extend in case of high water; except it is shown -by plaintiff’s plat that the natural surface of the land slopes to the south and southwest from the south end of the larger slough, and the lowest point shown in the rim of the small slough is on the east side about at thé point where this ditch is dug on the highway. There is no evidence showing that any other part of the basin, in which these sloughs lie is either wet or boggy.
For t-he reasons above set forth, it was not the duty of the defendant to take proceedings' to drain the basin containing these two small sloughs under the provisions of sections 8598 to 8604 of the Revised Code of 1919.
We have considered the contention of plaintiff as to the effect of the circuit judge’s inspection of the premises, made be-for granting the injunction in this case; and, with regard to such inspection, we approve of what was said by Mr. Justice Corson in Brady v. Shirley et al, 14 S. D. 447, 85 N.W. 1002" court="S.D." date_filed="1901-05-04" href="https://app.midpage.ai/document/brady-v-shirley-6685959?utm_source=webapp" opinion_id="6685959">85 N. W. 1002, as follows:
“But, as the law has made no provision for such an examination by the judge, and has not provided any method by which the result of such an eaxmination can be reviewed by this court, we are compelled to disregard it in the consideration of the case, and to look only to the evidence presented by the record.” Saint Croix Lumber Co. v. Pennington, 2 Dakota 467" court="None" date_filed="1881-10-15" href="https://app.midpage.ai/document/saint-croix-lumber-co-v-pennington-6565093?utm_source=webapp" opinion_id="6565093">2 Dak. 467, 11 N. W. 497; Farwell et al v. Sturgis Water Co., 10 S. D. 421, 73 N.W. 916" court="S.D." date_filed="1898-01-22" href="https://app.midpage.ai/document/farwell-v-sturgis-water-co-6685033?utm_source=webapp" opinion_id="6685033">73 N. W. 916; Dibble v. Castle Chief Gold Mining Co. et al, 9 S. D. 618, 70 N.W. 1055" court="S.D." date_filed="1897-04-16" href="https://app.midpage.ai/document/dibble-v-castle-chief-gold-min-co-6684849?utm_source=webapp" opinion_id="6684849">70 N. W. 1055.
The clear preponderance of the evidence being against the findings and judgment of the trial court, it is the duty of this court to set such findings and judgment aside. Randall v. Burk Township, 4 S. D. 337, 57 N.W. 4" court="S.D." date_filed="1893-11-24" href="https://app.midpage.ai/document/randall-v-burk-township-6683566?utm_source=webapp" opinion_id="6683566">57 N. W. 4; Durand v. Preston, 26 S. D. 222, 128 N.W. 129" court="S.D." date_filed="1910-10-04" href="https://app.midpage.ai/document/durand-v-preston-6687584?utm_source=webapp" opinion_id="6687584">128 N. W. 129; Reed v. Boland, 31 S. D. 309; 140 N. W.
The judgment and order appealed from are reversed, and a new trial ordered.