8 S.D. 639 | S.D. | 1896
This was an action to enjoin the defendant from interfering with or diverting the waters of Higgins creek, near Spearfish City, Lawrence county, and from carrying the same across plaintiff’s premises. The defendant claimed a right to the waters of said creek under and by virtue of a prior appropriation, and the right to carry the same by means of a ditch and flume across plaintiff’s premises, by virtue of such prior appropriation of the waters of said creek, under the act of congress and the rules and customs in force in the Black Hills country. The case was tried by the court without a jury and from its findings and judgment in favor of the defendant the plaintiff appeals.
The finding of the court as to the location of the water right by the defendant is as follows: “(1) That on or about the 20th day of April, 1877, the defendant, Daniel J. Toomey, who was then and there a citizen of the United States, went upon the unoccupied public lands of the United States, and diverted
The findings of the court were excepted to upon the ground that the evidence was insufficient to sustain them, and it becomes necessary, therefore, to review the evidence, so far, at least, as to ascertain if there is a preponderance of the same against the finding of the court. It is contended by the plaintiff that the evidence is undisputed that the plaintiff’s grantor built a cabin upon this quarter section in the summer of 1876, and that in the fall of that year he left the Spearfish valley, and went to the state of Missouri, leaving the property in charge of an agent, and returned in the spring of 1877; but whether before or after the defendant made the location of his water right, the evidence is conflicting. Prior to February 28, 1877, when the treaty with the Great Sioux Nation opening up the Black Hills country to settlement was ratified, no legal rights could be acquired in the public domain, as up to that time the settlers were trespassers. Appellant contends, however, that, though the act of settlement of plaintiff’s grantor in 1876 was a trespass, yet, under the decision of Caledonia Min. Co. v. Noonan, 3 Dak. 191, 14 N. W. 426, affirmed by the supreme court of the United States under the title of Noonan v. Mining Co. 121 U. S. 393, 7 Sup. Ct. 911, his acts prior to
It is contended by counsel for the respondent that the right of way for ditches and flumes, recognized by the acts of congress, continues until the patent of the pre-emptor is issued and he cites Osgood v. Mining Co., 56 Cal. 571; Farley v. Irrigating Co., 58 Cal. 142; Ditch Co. v. Thorp (Wash.), 20 Pac. 588; Ellis v. Improvement Co. (Wash.), 21 Pac. 27; Geddes v. Parrish, Id. 314—which seem to fully sustain his position. But since those decisions were made the very important case of Sturr v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, a case from the Black Hills country, has been decided, in which the supreme court of the United States held that in a homestead entry, when completed by a full compliance with the statute on the part of the settler, the patent relates back to the date of the filing, and cuts off all intervening adverse claims -to the water running thereon. This decision was as to the right of homesteaders only, and nothing is said as to pre-emptors. But Mr. Kinney in his recent work on irrigation, takes the view that under that decision all the cases hereinbefore cited are, in effect, overruled and that the decision of Sturr v. Beck applies to pre-emption claims as well as homestead claims. In this decision we have