Redwater Land & Canal Co. v. Jones

• Decision Date: 01 March 1911
• Citation: Redwater Land & Canal Co. v. Jones, 27 SD 194, 130 NW 85 (S.D. 1911)
• Parties: REDWATER LAND & CANAL COMPANY, Plaintiff and appellant, v. JOHN R. JONES, Defendant and respondent.
• Court: South Dakota Supreme Court

27 S.D. 194, 130 N.W. 85 (1911)

REDWATER LAND & CANAL COMPANY,

Plaintiff and appellant,

v. JOHN R. JONES,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Butte County, SD

Hon. Levi McGee, Judge

Affirmed

A. J. Plowman

Attorney for appellant.

Chambers Kellar, Jas. G. Stanley

Attorneys for respondent.

Opinion filed March 1, 1911

SMITH, P. J.

In May, 1878, James Newland located a water right on the east bank of Redwater river, about one mile below the mouth of False Bottom creek, in Lawrence county, and posted and recorded his claim to 4,000 inches of water for irrigating, milling, and domestic purposes, and constructed a ditch and diverted from said stream about 4,000 inches of water, and he and his successors in interest have continued to use said water since that time. The plaintiff by mesne conveyances became the owner of said water right and ditch. This water right was located and the water diverted from Redwater river above the lands of the defendant. In December, 1885, David T. Harrison and Cora B. Choteau located a water right upon Redwater river about one mile down stream from the Newland location, but above defendant's lands, and posted and recorded a notice claiming 4,000 inches of water from said stream for irrigation, milling, and domestic purposes, and constructed a ditch some 3 miles in length and for a time diverted and used waters of said river for irrigating and other purposes. The last-named ditch was of sufficient capacity to carry 4,000 inches of water. When both these water rights were located, one Spaulding and one Tomlins had settled upon and were in possession of lands now owned by defendant below said water locations. Harrison and Choteau desired to construct their ditch across said lands. In consideration of a right of way for said ditch, Harrison and Choteau granted and conveyed to Spaulding, the then owner, the right and use forever of waters to be taken from said ditch to irrigate portions of his said lands. The defendant Jones prior to the commencement of this action became the owner by mesne conveyances, and took possession of the lands formerly owned by Spaulding, and the water right conveyed by Harrison and Choteau to Spaulding. Prior to the commencement of this action, Newland, by proper conveyances, sold and conveyed his water location and ditch to the plaintiff corporation, and thereafter, prior to the commencement of this action, plaintiff also became the owner of the water right and ditch located by Choteau and Harrison. Plaintiff had full notice of the alleged rights of Spaulding to water from said ditch and acquired its rights to the Choteau and Harrison ditch with notice of the rights of Spaulding and his grantees, including the defendant, Jones. The plaintiff, after the purchase of the Choteau and Harrison ditch and water right, enlarged the ditch in 1889, and abandoned the use of the Newland ditch, and thereafter used the Choteau and Harrison ditch for the purpose of diverting water claimed under the Newland water right, and thereafter from time to time increased the amount of water taken out of Redwater river, through said ditch until the year 1901, when plaintiff first made adverse claim to a right to appropriate water as against defendant. Spaulding, the grantor of defendant, settled upon the lands now owned by defendant on May 28, 1876, and he and his successors in title have continued to cultivate and improve said lands continuously up to the present time. The defendant's said lands are riparian to and situated upon Redwater river, and were public lands of the United States until February 28, 1877, when the same were thrown open to settlement. Said lands are riparian to Redwater river, and, if irrigated, are worth at least $30 per acre. Not irrigated, they are worth not to exceed $10 per acre. Plaintiff, claiming the right so to do under the Newland and the Choteau and Harrison water right locations, diverted all the waters of the Redwater river in 1901 by means of a dam constructed across said stream, and carried all the waters of said river away from the lands of defendant, and distributed the same to other lands not riparian to said river, and has since claimed and now claims and asserts the right to maintain said dam and ditch and divert practically all the waters of Redwater river. There has been sufficient water in said stream at all times of the year to supply the needs of all riparian owner, for domestic and irrigating purposes.

The complaint alleges that the plaintiff is the owner of the irrigation ditches or canals above referred to, now known as the Redwater ditch or canal, and in separate paragraphs of the complaint alleges that the defendant in the years 1900, 1901, and 1902, respectively, without the permission or written consent of plaintiff and without any order of the court authorizing the same, repeatedly interfered with and cut said ditch and diverted a large quantity of water therefrom, to the injury of the plaintiff, in the sum of $100 in each of said years.

"For a further cause of complaint, the plaintiff alleges that the defendant is continuing to cut said ditch and to divert the water therefrom, and threatens to continue to do so, in violation of plaintiff's rights and to its irreparable damage; that there is no plain, speedy, or adequate remedy in the ordinary course of law, and that plaintiff will suffer irreparable injury unless this court shall make an order restraining defendant from further interfering with said ditch. Wherefore plaintiff prays judgment for $300 damages for the interfering with the said ditch and water as above set out; and, second, that the defendant be restrained and enjoined from further interfering with said canal and water right; and, third, for costs and disbursements, and for such other and further relief as may be properly allowed."

Defendant by his answer admits that in said years and at the times alleged in the complaint defendant diverted a small quantity of water from said ditch in possession of plaintiff, and that such diversion was without any order of the court and without permission or consent of plaintiff except as thereafter stated in said answer; and alleges that such diversion of water was made by defendant under a claim of right as thereinafter fully set forth. In the remaining paragraphs of the answer the defendant sets forth at great length and with much minuteness facts, circumstances, and agreements between the defendant and the predecessors in interest of the plaintiff, under which he claims the right to appropriate water from said ditch for irrigating portions of his land, and also alleges that the remaining portions of his land are riparian to the Redwater river, and that the plaintiff by means of the said Redwater ditch and canal is seeking to appropriate practically all the waters of the Redwater river, and thereby to deprive the defendant of his right to use said water for irrigation of his said riparian lands and for domestic uses, and prays judgment that the plaintiff take nothing by this action, and that defendant recover damage in the sum of $500, and that plaintiff be enjoined and restrained from diverting the waters of said Redwater river in such manner or in such amount as will deprive the defendant of sufficient water to irrigate the said lands and premises, and that defendant be compelled to permit at all times sufficient water to flow in the stream of Redwater river to irrigate the lands of defendant; that plaintiff be enjoined from interfering with the right of defendant to take from the said Redwater ditch a sufficient quantity of water to irrigate that portion of his lands irrigable from said ditch, and that plaintiff be perpetually enjoined, etc.

To these counterclaims plaintiff filed a very lengthy and explicit reply, consisting of a general denial except as to matters thereinafter admitted, and also various facts and circumstances which plaintiff alleges are sufficient to defeat the rights of defendant pleaded in said counterclaim, the substance and effect of which is that plaintiff's prior rights and appropriations of waters of the Redwater river entitle it to a greater quantity of water than ordinarily flows in said stream, and that defendant's rights, if any, are subordinate to plaintiff's rights. The cause was tried to the court upon the issues presented by these pleadings and findings of fact and conclusions of law made and entered by the trial court, and judgment entered thereon in favor of defendant.

The motion for a new trial alleges insufficiency of the evidence to justify the decision and decree of the court, and errors of law occurring at the trial, and, further, that the decree is insufficient and uncertain, and does not determine the rights of plaintiff and defendant. The motion refers to grounds specifically set out in assignments of error. These assignments are 48 in number and cover 24 closely printed pages in the abstract. Appellant contends, first, that plaintiff's action is in tort, and that an equitable counterclaim cannot be pleaded or proved by way of defense, and that the counterclaim attempted to be pleaded did not arise out of the subject-matter of the action set up in plaintiff's complaint. By the complaint, the plaintiff claims to be the owner of the ditch of the water right, and of the water conducted by the ditch, and that the defendant by cutting and digging away the embankment of said ditch diverted and let out large quantities of water then being conducted by said ditch, to plaintiff's damage, and threatens to continue such diversion and use of water. If the complaint be construed as alleging a tort and demanding damages and nothing more, plaintiff would not be entitled to and could not have asked injunctional relief, either temporary or permanent, as prayed for in the complaint. It seems plainly apparent, however, that this is not the theory upon which the complaint was framed,...