This is an action to enjoin the defendants from interfering with plaintiff’s water .right or diverting any of the water therefrom. Findings and judgment were in favor of the plaintiff, and the defendants appeal.
The court, in its findings of fact, found substantially that in September, 1881, one John Carr, the predecessоr in interest of plaintiff, located a water right on said creek for irrigation, domestic, and other useful purposes, to the extent of 100 inches,, miner’s measurement, and at the time of the said appropriation the same had not been approрriated by any other person or persons whomsoever; that, during the year 1882, Scurlock and Nunnally, the predecessors in interest of the plaintiff, located a water right on said creek to the extent of 200 inches, miner’s measurement, for irrigation, domestic, аnd other useful purposes; that in August 1890, the'plaintiff located a water-right on said creek, claiming che waters thereof to the extent of 300 inches, miner’s measurement, for irrigation, domestic and other useful purposes, and that the said amount of water was аnd is necessary for the successful cultivation of plaintiff’s said lands, and, at the time of the diversion and appropriation of said waters of said creek by the plaintiff, the same
The court further finds that in April, 1896, the defendants wrongfully and unlawfully diverted 200 inches of the waters of said creek from its natural channel, and thereby deprived the plaintiff of the use thereof.
The court further finds that on the 10th day of June, 1879, said Hartgering settled upon a certain tract of land fully described, riparian to said creek, ■ and thereafter received a patent therefor; that Paul Tharp settled upon a tract of lаnd riparian to said creek on the 21st day of June, 1881, and thereafter received a patent therefor.
The court further finds that John Carr settled upon land riparian to said creek on the 5th day of February, 1880, for which he subsequently received a patent. This tract of land was conveyed by Carr, together with his water right, to the
It is contended on the part of the defendants that the Hartgering homestead was the first riparian right acquired on said creek, the Carr land owned by the plaintiff second, the Swanzy land third, the other lands of the plaintiff fourth and fifth, and the Tharp land sixth; and that when they settled upon the land thеy thereby appropriated the waters that flowed oyer the same, or a sufficient amount to irrigate the same.
The defendants further contend that the court erred, first in holding that a water right could be located upon said creek by which a prior riparian owner would be deprived of water sufficient to irrigate his land; and, second, that the court erred in finding that the Carr water right exceeded 60 inches, the Scurloek 40 inches, Nunnally 40 inches.
This court has recently held, in the case of Lone Tree Ditch Compаny et al. v. Cyclone Ditch Company et al. 16 (S. D.)
In Barrows v. Fox,
In Senior v. Anderson,
In the case at bar the plaintiff, by using the water so claimed to be appropriated by Carr, Scurlock, and Nunnally, and enlarging the ditсhes made by them, gained no additional rights, and could not further extend the appropriation made by those appropriators. As before stated, the amount of water used by those appropriators for useful purposes limits the extent of their аppropriation. It is quite clear from the evidence that Carr, the appropriator of the first water right claimed by the plaintiff, did not at any time irrigate to exceed 60 acres of his land, and, taking the findings of the court as true, that 1 inch of water, miner’s meаsurement, was sufficient to irrigate 1 acre, Carr’s right was necessarily limited to 60 inches. In the case of Scurlock, the evidence is quite clear also that no more than 40 acres were irrigated by means of his ditch prior to the purchase of the same by thе plaintiff; and the same may be said as to the Nunnally water right.
The court clearly erred in holding that the tenants of Hartgering were estopped from claiming their rights as riparian owners. The right of a riparian owner to the use of the
It is insisted by the plaintiff that the Hansons, the tenants of Hartgering, had no right to the water or to the possession of the Hartgering land, for the reason that their lease was not in writing, and for the further reason that, even if their lease was valid, it had expired before the entry of judgment in this action. But, in the view we take of the case, the Hansons, having been mаde parties to the action: should be regarded as representatives of Hartgering, and, as a judgment has been entered against them, their right to the water as the tenants of Hartgering was necessarily determined by the action, and the plaintiff is now estopped by his own judgment from raising the question as to their right as tenants of . Hartgering. The case was evidently tried in the court below upon the theory that they represented Hartgering, and were entitled to all the rights that Hartgering had or might have to use the waters of the creek for irrigating purposes, and, that being the theory upon which the case was tried in the court below, it must be determined in this court upon .the same theory. Again, the court erred in ignoring the rights of the defendants Tharp and the Hansons as riparian owners. All the rights acquirеd- by Carr, Scurlock, and Nunnally were acquired subject to the riparian rights of Hartgering and his tenants, the Hansons, and the plaintiff’s appropriation of the water in 1890 was subject to the riparian rights of all the defendants and all other prior riparian owners.
Judgment reversed, and new trial granted.