Belle Fourche Irr. Dist. v. Smiley
| Decision Date | 06 February 1973 |
| Docket Number | No. 11099,11099 |
| Citation | 204 N.W.2d 105,87 S.D. 151 |
| Parties | BELLE FOURCHE IRRIGATION DISTRICT, a corporation, Plaintiff and Respondent, v. R. A. SMILEY, Defendant and Appellant, v. STATE of South Dakota and Water Resources Commission of the State of South Dakota, Interveners and Respondents. |
| Court | South Dakota Supreme Court |
Kellar, Kellar & Driscoll, Lead, R. A. Smiley, Belle Fourche, for defendant and appellant.
Stephens & Brandenburg, Belle Fourche, for plaintiff and respondent.
William J. Srstka, Jr., Sp. Atty. Gen., Gordon Mydland, Atty. Gen., Pierre, on the brief, for interveners.
This action was commenced in 1961 by the Belle Fourche Irrigation District to restrain defendant, R. A. Smiley, from diverting water from the Belle Fourche River for irrigation purposes. The State and the Water Resources Commission of the State were allowed to intervene and file a Complaint in Intervention. Following trial, the court entered findings of fact, conclusions of law and a judgment enjoining defendant from diverting waters of the Belle Fourche River except for limited irrigation purposes with a priority date of May 1, 1953. On appeal by defendant this court rendered its opinion reversing and remanding the action for the determination of a single issue, i.e., 'to an adjudication of the extent of the existing rights of appellant to the use of waters of the Belle Fourche River.' See Belle Fourche Irrigation Dist. v. Smiley, 84 S.D. 701, 176 N.W.2d 239. The limited remand was necessary because there was no evidence to sustain the findings of the trial court relative to priorities and quantity of water defendant could lawfully divert. Our prior opinion is referred to for a statement of the ultimate facts involved.
On remand, the parties entered into a supplemental stipulation of facts to cure the deficiency in the evidence as follows:
(1) The defendant, R. A. Smiley, has 207.8 described acres of land, and the water rights appurtenant are the subject of this action.
(2) That at all times pertinent to the subject matter of this action, and especially as of May 1, 1953, the defendant, R. A. Smiley, had a pump that had a maximum capacity of 1200 gallons per minute, which converts to approximately 2.67 cubic feet per second.
(3) That at all times pertinent to this action, and especially as of May 1, 1953, the defendant was irrigating his property, shown by and limited to the land described in paragraph (1) above, at the rate of 1200 gallons per minute, which converted to approximately 2.67 cubic feet per second.
Based upon such additional facts the trial court entered its supplemental findings of fact, conclusions of law, and judgment enjoining defendant from diverting waters of the Belle Fourche River for the irrigation of real property owned by him, except defendant was determined to have a vested water right with a priority date of May 1, 1953, allowing him the right to divert not to exceed 1200 gallons of water per minute which converts to 2.67 cubic feet of water per second from the Belle Fourche River for irrigation purposes during the period May 1st to October 31st inclusive, each year, on not to exceed 207.8 acres of certain described property owned by defendant. The judgment further provided defendant's right to divert water was subject to domestic use of the public and to the prior appropriative rights of plaintiff.
Defendant has appealed from the Supplemental Judgment contending the trial court erroneously granted him a limited appropriative water right whereas he has a vested riparian right to use and divert water from the Belle Fourche River for domestic and irrigation purposes by virtue of his ownership of land contiguous to the river. This riparian right, defendant asserts, became an inseparable incident of his land when it was settled; use did not create it and disuse cannot destroy it; and to deny such right deprives him of property without due process of law and without just compensation.
The same contentions were presented and considered in the prior appeal of this action. All were determined adversely to defendant. No useful...
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Smiley v. State of South Dakota, CIV 76-5007.
...had correctly determined the extent of plaintiffs' vested right in accordance with the 1955 legislation. Belle Fourche Irrigation District v. Smiley, 204 N.W.2d 105 (1973). The Court stated in regard to that The act, in effect, limits the riparian doctrine in this state to accrued rights th......
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Smiley v. State of S. D., 76-1710
...Court of South Dakota in Belle Fourche Irrigation District v. Smiley, 84 S.D. 701, 176 N.W.2d 239 (1970) and in Belle Fourche Irrigation District v. Smiley, 204 N.W.2d 105 (1973). Relying on a series of cases commencing with Rooker v. Fidelity Trust, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362......