Johnson v. Hawthorne Ditch Co.
| Decision Date | 18 November 1913 |
| Citation | 143 N.W. 959,32 S.D. 499 |
| Parties | JOHNSON v. HAWTHORNE DITCH CO. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Pennington County; Levi McGee, Judge.
Action by Edward W. Johnson against the Hawthorne Ditch Company. From a judgment for plaintiff, defendant appealed, and plaintiff prosecuted a cross-appeal. Affirmed on defendant's appeal, and modified and affirmed on plaintiff's appeal.
Schrader & Lewis, of Rapid City, for appellant.
Buell & Gardner, of Rapid City, for respondent.
Action in the nature of ejectment, to recover possession of certain lands upon which were situated a dam, headgate, and irrigation ditch in possession of the defendant, and for damages.
The answer was a general denial, and in addition sets up the 6 and 10 year statutes of limitation, and a 20-year prescriptive title; pleads that the defendant became a corporation on the 30th day of July, 1900, for the purpose among other things, of taking over, acquiring, maintaining and operating the water right, dam, and irrigation ditch, and using and disposing of water flowing therein, for irrigation and other useful purposes; alleges the purchaser of water-right locations made in 1886 and in 1890 from certain locators; alleges that the defendant purchased, constructed and now maintains and operates more than 25 miles of extensions and laterals from said ditch, for irrigating lands of defendant's stockholders, constructed at a cost of $15,000; pleads that plaintiff's demands are barred by the statute of limitations, and that the plaintiff should be estopped by his laches from attempting to enforce his claim for possession of and damage to the property upon and across which said dam, head gate, and ditch are situated.
By stipulation of parties the action was tried to the court without a jury, in November, 1909. The trial court by its decision found that from the 26th day of February, 1883, to the 31st day of October, 1906, plaintiff was the owner of an undivided one-half interest in the land, and from the 31st day of October, 1906, to the time of the trial, had been the sole owner in fee of the whole of said tract of land claimed by him, upon which were situated the dam, headgate, and portion of the ditch in possession of defendant; that while the plaintiff, his co-owners, grantors, and predecessors in title were in possession of the said premises, and about the 12th of July, 1886, George Hunt, John P. McElroy, and John R. Brennan, without the consent, knowledge, or acquiescence of any of them, went upon said premises and posted a written notice thereon at a point on the north bank of Rapid creek, claiming 2,000 miners' inches of the waters of said creek measured under six-inch pressure; that thereafter, and on or about the 12th of July, 1890, John P. McElroy, George Hunt, and James M. Woods, without the knowledge, acquiescence, or consent of the owners of said land, entered upon said premises and posted a written notice thereon, at a point on the north bank of Rapid creek at or near the head of the present Hawthorne ditch, claiming 3,000 miners' inches of the waters of said creek, measured under six-inch pressure; that thereafter in November, 1890, the said John P. McElroy, George Hunt, and James M. Woods sold and conveyed to the defendants herein all their right, title, and interest in and to said water right, dam, and ditch. The evidence also shows that on the 2d day of December, 1908, and after this action was begun, George Hunt, John P. McElroy, and John R. Brennan, by quitclaim deed, conveyed to the defendant whatever right they may have acquired by the water-right location made by them on the 12th day of July, 1886. The court further found that in the years intervening between 1890 and 1893, the defendant corporation surveyed and constructed an irrigation ditch, and by means of the aforesaid dam and ditch diverted the waters of Rapid creek to a beneficial use for the first time in the year 1893, and continuously since said time has used said waters conveyed through the ditch across the premises of plaintiff, and delivered same for irrigation of lands of defendant's stockholders and others; that none of the locators of said water rights, nor the defendant herein, ever acquired, by purchase, condemnation, or otherwise, from the owners thereof, the right to go upon said premises to locate said water right or construct said ditch; and that none of the said parties have ever used the water right, ditch, dam, and right of way across plaintiff's land under any such claim of right. The court further found that neither the plaintiff nor any of his co-owners of grantors had any knowledge or notice of the location of said water right, or the construction or maintenance of said dam or ditch, until about the month of July, 1895; that upon becoming advised thereof, the plaintiff and his then co-owners gave written notice to defendant, demanding the immediate removal of said dam, and that defendant replace said land in the same condition it was before said ditch had been constructed, and pay any damages accrued by reason of said unlawful and unauthorized injury to said lands; that defendant, having such notice, continued to maintain said dam and ditch on and across said premises, and still maintains the same and excludes plaintiff from possession; that the defendant, its grantors and predecessors in interest, did not have possession of said water right and ditch for a continuous period of 20 years prior to the commencement of this action, but that defendant has had possession of said ditch and premises since 1890, and has used said ditch and premises since 1893, when the waters from Rapid creek were first diverted into said ditch and devoted to beneficial uses. The court further finds that George Hunt, John McElroy, and John R. Brennan wholly abandoned their water-right location of July 12, 1886, and the ditch and grounds appurtenant thereto. As conclusion of law, the court found that the attempted locations of water rights in 1886 and 1890 were mere trespasses without right, and that the defendant corporation acquired no other or greater rights by its deeds from such locators; that the defendant has acquired no right, by prescription or otherwise, to the possession of such ditch, water right, and dam upon said premises, nor the right to maintain the same, but that it would be inequitable now to require defendant to remove its ditch and dam therefrom and to deliver up possession of said premises to plaintiff, and that plaintiff can be compensated for his damages by a money judgment. The court thereupon entered an interlocutory judgment or order, that the amount of damages to plaintiff's property by reason of the construction and maintenance of said water right, dam, and ditch thereon be submitted to and assessed by a jury, and that upon assessment and payment of such damages the plaintiff's right to possession be denied and his action dismissed, and that defendant be awarded a right of way over and across said premises in the nature of an easement as theretofore used, and that defendant's title to such easement thereupon be quieted in said defendant.
Findings and this judgment or order were entered on the 27th day of November, 1909, and thereafter, on November 22, 1910, a jury was impaneled and sworn to assess plaintiff's damages pursuant to said interlocutory judgment, and witnesses were sworn and testified, without objection, as to the value and quantity of plaintiff's land appropriated and used for the purpose of said dam, headgate, and ditch, and the damages to plaintiff occasioned thereby; and, plaintiff offering no evidence in opposition, the court on its own motion directed the jury to return a verdict in the sum of $25 damages upon undisputed evidence; and, the jury having returned such verdict, the court thereupon entered its judgment in favor of plaintiff and against defendant for the amount of damages so ascertained and assessed by said jury for the taking and damaging of the premises of plaintiff and the use and occupation thereof as a right of way for the dam and irrigation ditch and flowing the waters of Rapid creek therein, and, upon payment of said damages, together with costs of the action, that defendant be entitled to a perpetual easement over and across the premises of plaintiff for a right of way for its said dam and irrigation ditch, described as follows: "A strip of land 10 feet in width on each side of the center of the irrigation ditch of the defendant corporation, beginning at a point north 70 degrees, 30 minutes west about 538 feet distance from the southeast corner of (plaintiff's premises), thence in a southeasterly direction along the line of said ditch over and across the premises of said plaintiff, a distance of 538 feet more or less, together with the ground covered by the dam and headgate as the same ditch, dam, and headgate are now actually constructed and situated upon said premises."
From these orders, judgments, and decrees, and an order overruling its motion for a new trial, defendant appeals, and assigns as error insufficiency of evidence to sustain the findings of the trial court, together with alleged errors of law...
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