28 S.D. 509 | S.D. | 1912
This is an action brought by the owner of land riparian to Dakota (commonly called “James” or “Jim”) river, in Hutchinson county, to restrain the defendant from obstructing the natural flow of that stream and to recover damages caused by defendant’s milldam, located below the plaintiff’s land. The learned trial court, holding that the plaintiff’s claim for damages was barred by the limitation prescribed in section 857, Revised Code Civil Procedure, and that the defendant possessed the right, by 'prescription, to maintain its dam as originally constructed in 1875, entered a judgment wherein it is adjudged and decreed “that the dam heretofore constructed and now maintained by the defendant, its grantors and predecessors, across the James river, in South Dakota, at a place commonly designated as Milltown, * * * be, by the defendant, reduced, lowered, and removed to an elevation or level not exceeding six feet in height from the bottom of the old flume or old wheelhouse floor as originally located and now existing on the west side of the said James river, at the location described above, intending hereby that everything in the nature of ‘flashboards’ that are now or heretofore have been used upon said dam shall be and continue to be removed therefrom, and the defendant is hereby ordered, commanded, and enjoined to reduce and lower said dam the full length thereof across said James river to an elevation not exceeding six feet in height from the bottom of the old flume or -old wheelhouse floor as aforesaid, and to remove from said dam the full length thereof all material of every description whatsoever above said elevation of six feet from the bottom of the old flume or old wheelhouse floor as aforesaid, at the point of -construction thereof, so as to be level across said river at an elevation of six feet from the bottom of the old flume or old wheelhouse floor so that the same shall not in any manner form an obstruction or retard the natural flow of water in said James river above said elevation of six feet from the bottom of the old flume or old wheelhouse floor; * * * that the defendant be, and it is hereby, forever enjoined and restrained
Laches is not, like limitation, a mere matter of time, but principally a question of the inequity in permitting the claim to be enforced, an inequity founded upon some change in the conditions, or the relations of the property or the parties. “Laches,” in
The judgment of the circuit court is affirmed.