Butz v. Richland Tp.

• Decision Date: 29 February 1912
• Citation: 28 S.D. 442,134 N.W. 895
• Parties: BUTZ v. RICHLAND TP.
• Court: South Dakota Supreme Court

28 S.D. 442

134 N.W. 895

BUTZ

v.RICHLAND TP.

Supreme Court of South Dakota.

Feb. 29, 1912.

Appeal from Circuit Court, Beadle County; Alva E. Taylor, Judge.

Action by Edward L. Butz against Richland Township. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. Reversed.

A. W. Wilmarth, for appellant.

B. B. McClaskey, for respondent.

CORSON, J.

This is an appeal by the plaintiff from a judgment entered in favor of the defendant and from an order denying a new trial. The action was instituted by the plaintiff to restrain the defendant from continuing to flow water from an artesian well owned by it over and upon premises owned by him, and for damages resulting from the flow of such water upon the premises of the plaintiff. It is alleged in the complaint, in substance, that the plaintiff is the owner in possession of and entitled to the possession of a quarter section of land in Beadle county, and that the defendant constructed a well and negligently allowed the water from this well to flow over and upon the said premises of the plaintiff, thereby causing him damage.

The defendant in its answer admits the ownership of the premises by the plaintiff, the construction by the defendant of the artesian well, and that the water therefrom flows upon and over the premises of the plaintiff, but denies that such water is allowed to flow negligently, or that plaintiff is damaged thereby, and alleges, as a further defense, that said well was constructed on land owned by it in 1893, and that the then owner of the said premises claimed by the plaintiff consented that the water from the said well might flow over the said premises. And the defendant, as a further defense to said action, further alleges: “That the water from the artesian well which defendant constructed under the operation of the laws of the state of South Dakota, known as the ‘Melville Artesian Well Law,’ and amendments thereto, had flowed for 14 to 15 years from said well into a natural lake bed which is on plaintiff's land. That when said well was constructed the owner of said land fully acquiesced in the flowing of said water into said lake bed and from this into a natural water course, in which it has flowed for the length of time last aforesaid into Pearl creek, in said county. That the course of said water from said lake bed to Pearl creek has been in no way altered or changed by this defendant for the length of time last aforesaid, but that whatever improvements were made in any way in said water course from said natural lake bed to Pearl creek were made at or about the time said well was constructed, and long before plaintiff had any interest whatever in said land. That plaintiff, when he purchased the land, purchased it in the condition it is now in, and with full knowledge that the water from said well was flowing and had been flowing into said lake bed, and thence along the course it now pursues to Pearl creek, for a great many years. *** Defendant further states that it is impossible for them to close off the flow of said water, as it has broken through the pipe, and is coming out at the outside of same.”

The case was tried to the court without a jury, and the court, after finding the ownership of the property in the plaintiff, and that the property was conveyed to him by its former owner on January 8, 1908, and that one Foster R. Clement became the owner of the premises on January 11, 1893, and continued to hold the title of the same until 1901, and that one C. G. Church and his assistant, E. A. Conn, were the agents of Foster R. Clement, the owner of said land, found:

“That in 1896 C. G. Church and his assistant, E. A. Conn, were the agents of Foster R. Clement, the owner of said land, and as such agents maintained an office in Watertown, S. D., and had charge, as such agents, of the land now owned by plaintiff and of other lands of said Foster R. Clement, and they, as such agents, at all times kept said Clement posted as to his business in charge of the Watertown office. That in the year 1896, and while defendant township was supplying water from said well for irrigation purposes under the laws of South Dakota, it became necessary to find an outlet for the surplus water from said well, and Burton Culver, as chairman of the board of supervisors of said township, for and on behalf of said township, applied by letter to C. G. Church, agent of Foster R. Clement, owner of said land, for permission to run water from said well over the land in question, to wit, N. W. 1/4 of section 28, township 110, range 60. That C. G. Church conducted an office of Watertown, S. D., known as the ‘Watertown Office.’ That this office was in operation during the year 1896, and Edwin A. Conn was in his employ about the year 1897. Edwin A. Conn had the management of said office, and reported all matters to C. G. Church that said office had in charge, and C. G. Church reported to Foster R. Clement. That a part of the business of the Watertown office was to loan money, collect interest, foreclose mortgages, sell farms, rent them, pay taxes, and look after the farms for Foster R. Clement and others, and, among these, the tract in question, above described, belonging to Foster R. Clement was in charge of said office. That said Burton Culver, as township supervisor, received from the above-named Watertown office authority to conduct water upon and across the land in question. That Edwin A. Conn, above-named, personally inspected the artesian well, above described, belonging to defendant, and reported thereon to C. G. Church and had considerable correspondence regarding said well. That the defendant township, from the year 1896 up to the commencement of this action, continued to flow its surplus water over the land in question, without objection from the owners, and said water was so flowing over said land when plaintiff acquired title to same. That while said water was so flowing over said land a representative from the Watertown office examined said land, and reported to said office that the artesian well ran through the land, making sloughs. That said surplus water from 1896 continued to run over said land with the knowledge of the owners thereof, and no objection was made until after it had flowed for many years. No objection was made by Foster R. Clement or Peter Kiene of the water flowing over said land to the board of supervisors of said township, or by any of the subsequent grantees of said land down to May 4, 1907. That the water from said artesian well flows over the land of plaintiff first into a depression, and covering about 12 acres, and from thence southerly in a depression or draw across said land and other lands adjoining into a creek, known as ‘Pearl Creek,’ and that the fall of said land to the south side of said land is 10 inches. That work has been done on plaintiff's land by some one in...