Anderson v. Drake

Decision Date10 November 1909
Citation123 N.W. 673,24 S.D. 216
PartiesADOLPH ANDERSON, Plaintiff and appellant v. E. R. DRAKE, Defendant and respondent.
CourtSouth Dakota Supreme Court

Appeal from Circuit Court, Roberts County, SD

Hon. J. H. McC0y, Judge

Reversed

J. J. Batterton, Thad L. Fuller

Attorneys for appellant.

Frank McNulty

Attorney for respondent.

Opinion filed Nov. 10, 1909

WHITING, J.

This action comes before this court upon an appeal from the judgment of the trial court and from the order of such court denying a new trial herein. The action was tried in the lower court before a judge without a jury, and the said trial court at the close of the plaintiff's testimony, upon motion of the defendant, dismissed the complaint therein and filed its findings of fact and conclusions of law favorable to said defendant, refusing certain findings asked for by the appellant. Upon this appeal the plaintiff and appellant assigns as error certain rulings of the trial court in rejection of evidence; but the assignment most relied upon is the one going to the question of the sufficiency of the evidence to sustain certain findings of fact made by the court, and for the purpose of this appeal it will only be necessary to consider this feature of the case, together with the question of whether or not, if the findings of fact are wrong, their correction would necessitate a change in the conclusion of law and therefore in the judgment.

This action was brought to restrain the defendant from continuing the maintenance of a certain ditch or trench, through which it is claimed by the plaintiff a continuous stream of water is discharged upon and injuring the plaintiff's land. There being no question raised as to the sufficiency of the pleadings, it only becomes necessary to consider the facts as 'shown by the evidence. It appears undisputed: That the defendant is the owner of the northwest quarter of a certain section of land; that the plaintiff is the owner of the southeast quarter of said section; that a third party owns the southwest quarter of said section; that running in a somewhat easterly and westerly direction along the center line of said section is a ridge which slopes to the south having on its southern slope some depressions or drains, by which the rainfall and water from melting snow is carried to the lower land to the south; that one of these depressions or draws is situated near the southeast corner of defendant's land, and this depression slopes rapidly toward the south extending onto the land of the third party, above referred to; that in the draw just mentioned, and near the southeast corner of said northwest quarter, the defendant in the year 1900 sunk a wellhole, and in 1903, for the purpose of watering his stock without drawing water from said wellhole, the defendant dug a small basin near said well and south of it, and connected this basin by a ditch with the said well, cutting the side of said well to the depth of two or three feet, and by so doing allowing the standing water in said well to flow into said basin. It appears without dispute that, at the southern end of this draw upon the land of this third party, this natural drainage channel spreads, and the bottom thereof, becoming practically level and having a very slight slope, forms a natural depression in the form of a shallow swale extending it an easterly direction across the plaintiff's land, and that new the southeast corner of plaintiffs land this swale opens into a water course in the form of a flowing river. It also appears that near the eastern side of plaintiffs land, at one place the swale has become somewhat filled so that the bottom thereof is a few inches higher than the bottom of the swale further west, thus causing a shallow pond hole from which the water cannot entirely drain. It is claimed by the plaintiff that the well dug by the defendant opens up a spring which feeds such well, and that the spring filled said wellhole to within about three feet of the natural surface of the land surrounding the well. Plaintiff claims that prior to the sinking of said wellhole, and also after the same was sunk, and down to the time when the ditch leading from said well was dug, no water ever flowed from such well onto his land except the water coming down through such draw from rainfall or from melting snow, and that such water as came from such rain and snow sunk into the ground, leaving plaintiff's land all tillable; and plaintiff claims that, ever since the ditch was dug from said well allowing the water to run into the pond above mentioned, such pond has overflowed at all times of the year, causing a small stream of water to run down across the southwest quarter and onto plaintiff's land, spreading over the swale on said land, and rendering said land unfit for farming purposes of any kind.

We are unable to find any conflict in the testimony of plaintiff's witnesses, or anything to indicate that their testimony was not truthful. The trial court, among other findings, found that the spring above referred to was fed by surface water percolating through the soil, and that said spring or well was not maintained in such a way as to collect water and discharge any quantity of water upon the land of the plaintiff, and the court found that the water was allowed to escape from said well and flow the natural course of...

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