Alsager v. Peterson

• Decision Date: 06 May 1913
• Citation: 141 N.W. 391,31 S.D. 452
• Parties: ALSAGER v. PETERSON.
• Court: South Dakota Supreme Court

141 N.W. 391

31 S.D. 452

ALSAGER v. PETERSON.

Supreme Court of South Dakota

May 6, 1913

Appeal from Circuit Court, Day County; Frank McNulty, Judge.

Action by Peter J. Alsager against John P. Peterson. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Affirmed.

Anderson & Waddel, of Webster, for appellant.

H. H Potter, of Webster City, for respondent.

WHITING P. J.

Plaintiff and defendant owned farms which adjoined one another. Upon defendant's farm there were two or three low places, and for the purpose of draining the water therefrom, he had dug a ditch which conducted the water through a rise of land into a slough partly on defendant's and partly on plaintiff's farm. Plaintiff brought this action seeking an injunction restraining defendant from continuing the maintenance of such ditch; plaintiff claiming that the same caused an unusual discharge of surface water upon his land to its injury and his damage. It appears that trial was had before the court without a jury; that findings of fact and conclusions of law were made and entered in favor of defendant; that a judgment was entered thereon; and that a motion for new trial was denied. Plaintiff has appealed from such judgment and from the order denying a new trial.

Appellant contends that the trial court erred in admitting evidence showing that the ditch and the slough upon his land were both dry at the time of the trial; and he also contends that the evidence was insufficient to support a finding made to the effect that, at the time of the trial and for several months prior thereto, there had been no water whatever in the sloughs or depressions on respondent's land and no water running through the ditch dug by respondent. An examination of appellant's brief reveals the fact that appellant's real contention is that the action should stand or fall upon the facts as they existed at the time it was brought, and that the condition existing at the time said action was brought was all that was material; that any finding as to the conditions existing at the time of trial was immaterial, even if there had been sufficient evidence to support such finding. There is nothing in the record, as presented to us, to show but what there were ample findings, supported by competent evidence, to support the denial of injunctional relief without regard to the evidence and finding complained of; for all that appears from appellant's brief, appellant may have failed to prove that the facts existing at the time suit was brought were such as, if continuing in nature, would have entitled him to relief asked.

Appellant is clearly in error in his contention that the trial court had no right to receive evidence as to the condition existing at the time of the trial.

The granting of injunctional relief rests within the discretion of the trial court...