218 N.W. 599 | S.D. | 1928
Lead Opinion
This is an appeal from an order overruling defendant’s demurrer to plaintiff’s complaint. The complaint alleges that during the year 1879 the plaintiff located a homestead on certain premises, then constituting a part of the public domain, adjacent to or adjoining the town site of the city of Ouster; that he resided continuously upon said homestead until the year 1903, when a patent to said premises was issued to him by the government of the United States, and that plaintiff ever since has been and now is the owner in fee simple of said premises; that at all the times above mentioned there was located upon said premises certain springs of fresh water that were fed by percolating waters in and under the surface of said premises; that, though varying in volume, the flow of water from said springs was continuous; that from anfl after plaintiff’s settlement upon said premises in the year 1879 he made use of and depended upon the waters from the said springs for domestic and agricultural purposes, and that said use was continuous and uninterrupted from said date down to the year 1902; that during the year 1892 plaintiff erected a large dwelling house on said premises and sunk a well to a considerable depth, which well was fed and supplied with water percolating through the soil on the premises of said land, and that the said water in said well and the water from said springs were used by plaintiff
Plaintiff prays judgment permanently enjoining and restraining defendant from further interference with the flow of so much of the water from the said springs as is necessary and desirable for the use of plaintiff on the said premises, for damages, his costs, and for general relief.
Defendant’s demurrer is based upon the ground that the complaint does not state facts sufficient to constitute a cause of action. By its demurrer defendant admits all the foregoing facts, and it would seem that a mere statement of said facts is sufficient to show that plaintiff is entitled to the relief demanded in his complaint.
Defendant contends that plaintiff is not entitled to recover because at the time defendant first went upon the premises the title thereto was in the government. This is true, but it is not material. Plaintiff had a possessory right that afterwards ripened into a fee-simple title. Defendant recognized plaintiff’s possessory right and entered upon the premises as a lessee or licensee of plaintiff and cannot now question plaintiff’s title.
Defendant also contends that, having taken the water from plaintiff’s premises, for a period of some 23 or 24 years without objection, plaintiff is guilty of laches and cannot now
Defendant also contends that plaintiff is not entitled to the relief prayed for because no contract was ever entered into whereby defendant agreed to furnish palintiff with water. Plaintiff does not claim that any such contract was ever made — the only contract that was made was the permission given to defendant by plaintiff to take the water in excess of what plaintiff needed on his own premises.
Defendant next contends that plaintiff has not shown himself entitled'to damages or to compel comdemnation proceedings. Plaintiff'is not asking for damages nor for condemnation proceedings, but only to have defendant restrained from taking water in excess of the amount plaintiff gave it permission to take.
Defendant contends that plaintiff’s complaint is bad because it contains evidentiary matters and recitals of negotiations and conclusions incompetent as evidence. This is a defect that cannot be reached by general demurrer.
Lastly, defendant contends that plaintiff has a plain, speedy, and adequate remedy in an action at law, either for damages or under the statute to compel condemnation, if plaintiff’s rights have been invaded. There is no merit in this contention. Plaintiff could not compel condemnation proceedings in any event, and an action for damages would not afford adequate relief. The wrong complained of is a continuing wrong — a new cause of action arises every day and injunction is necessary to avoid a multiplicity of suits.
The order appealed from is affirmed.
Dissenting Opinion
(dissenting). I am unable to agree with the majority of the court that the complaint states a cause of action for any purpose. The complaint is attacked by demurrer and this court ought not to indulge a too liberal construction. We should
The prayer of the complaint is in five paragraphs and shows what plaintiff seeks: First, he asks that defendant be permanently enjoined “from ever, in any manner, obstructing the full free flow, of water” into his line tapping the city main, and from in any manner charging plaintiff therefor; second, that defendant be en
If the prayer of plaintiff’s complaint were granted, the city would be compelled to erect at its expense an elaborate waterworks system (and incidentally to furnish machinery, pumps, and men to operate it) for the primary use and benefit of Tubbs, a private person, with no right in the city, except to use such water as plaintiff might permit. I do not know how common it may be for private persons to make such contracts with cities as is contended for here, but I am quite sure the courts are not often appealed to to enforce such contracts, and until the decision reached in the majority opinion I would have been sure no appeal could be successful.
The majority opinion characterizes the possession of the city as permissive only and says that plaintiff does not claim there was a contract. He certainly alleges there was a contract. Above I have quoted and underscored the exact words of the complaint as to a contract. True, he has repeatedly said that the occupancy was permissive, as if there were some virtue and efficacy in a constant repetition of that conclusion, but his allegations of fact upon which he bases his prayer refute his conclusion. With all due respect to other members of the court, I insist that the complaint does allege a contract and its breach, and that contract and the breach thereof forms the basis for all the specific relief sought. Such contract is so obviously ultra vires and beyond the power of the city to make that no citation of authorities is necessary.
Under the facts pleaded plaintiff is entitled to no relief unless it be damages for taking or injuring his property. Such cause has not been properly pleaded. The sufficiency of the complaint has been challenged by demurrer and there is no need for a liberal construction in furtherance of justice, as the complaint may be amended, setting out such cause of action in unmistakable terms. The majority opinion does not limit the cause of action to damages, but appears' to sustain the complaint as an action in equity.
By injunction plaintiff seeks specific performance of a contract in which the city must pay for plaintiff’s private lines of pipe leading to his dwelling house and ranch buildings, including plumbing, hydrants, and faucets, and connect them with its water main and then permit plaintiff to take all the water if he desire's to- do- so. In consideration for which the city may have what water the plaintiff permits it to have. If that is not a private waterworks system built at public expense, I am unable to define it.
If when the remittitur of this court is sent to the circuit court, that court grants the relief prayed for and through an administration friendly or indifferent to such result, no appeal is taken, or if an appeal be taken and this court adheres to its decision here made as the law of the case, then despite the constitutional guaranty that taxes shall be levied for public purposes only, the citizens of Custer will be taxed to support a private water system and every washerwoman must pay proportionately more for her tub of water to maintain that system. If the majority of the court do not intend to say that the complaint states a cause of action to enforce the contract pleaded, I think the opinion should say what cause of action is sufficiently pleaded, thereby eliminating the uncertainties and ambiguities of the complaint on the trial and on another appeal if it comes to this court again.