Scott v. Toomey
| Decision Date | 17 June 1896 |
| Parties | ELLEN SCOTT, Plaintiff and appellant, v. DANIEL J. TOOMEY, Defendant and respondent. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Lawrence County, SD
Affirmed
G. C. Moody, William S. Elder
Attorneys for appellant.
McLaughlin & McLaughlin
Attorneys for respondent.
Opinion filed June 17, 1896
This was an action to enjoin the defendant from interfering with or diverting the waters of Higgins creek, near Spearfish City, Lawrence county, and from carrying the same across plaintiff’s premises. The defendant claimed a right to the waters of said creek under and by virtue of a prior appropriation, and the right to carry the same by means of a ditch and flume across plaintiff’s premises, by virtue of such prior appropriation of the waters of said creek, under the act of congress and the rules and customs in force in the Black Hills country. The case was tried by the court without a jury and from its findings and judgment in favor of the defendant the plaintiff appeals.
The finding of the court as to the location of the water right by the defendant is as follows:
The court’s finding as to the inception of plaintiff’s title to the land upon which the defendant’s water right was located and over which his ditch and flume were constructed is as follows:
It is through George W. Rosenbaum, mentioned in this finding, that plaintiff claims title. The court concludes as matters of law as follows:
“(1) That the defendant, Daniel J. Toomey, is the owner of a water right on Higgins gulch, and is entitled to so much of the waters of Higgins gulch as can be diverted to the west ditch, described in the evidence; and that he appropriated the same before any other rights were acquired therein …”
“(6) That the said plaintiff, Ellen Scott, having bought the land with the ditches and flume upon it, is chargeable with notice of the actual condition of the land, and also with notice of any facts which she might have obtained by reasonable inquiry as to the said ditches and said flumes; and her grantor being estopped to claim anything as to said ditches, she is also estopped, and also in the same position that he would be as to laches; and as to the flume she woad have no power or greater right in reference to the same than he would have.”
It will be observed that the court finds that defendant’s water right was located April 20, 1877, and that Rosenbaum’s settlement was made May 13, 1877, nearly a month after defendant’s water right was located. The natural flow of Higgins creek was over the land now claimed by the plaintiff. The goverment patent to Rosenbaum bears date of August 1, 1883, and contains the following condition or reservation:
“To have and to hold the same, together with all rights, privileges, immunities and appurtenances, of whatsoever nature thereunto belonging, unto the said George W. Rosenbaum and to his heirs and assigns forever; subject to any vested and accrued water rights for mining, agricultural, manufacturing or other purposes, and rights to ditches and reservoirs used in connection with such water rights, as may be recognized and acknowledged by the local customs, laws, and decisions of courts, and also subject to the right of the proprietor of any vein or lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect thepremises hereby granted, as provided by law.”
This condition or reservation was inserted under and by virtue of Secs. 2339, 2340, Rev. St. U. S., enacted in 1866 and 1870, which read as follows:
Sec. 2339: “Whenever, by priority of possession rights to the use of water for mining, agriculture, manufacturing or other purposes, having vested and accrued, and the same are recogized and acknowledged by the local customs laws and the decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified, is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.”
Sec. 2340: “All patents granted, or pre-emption or homestead allowed, shall be subject to any vested or accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section.”
This has been the law in the Black Hills country, by custom and the decision of the courts, since February 28, 1877. The rights of the parties must therefore be determined by priority of location, as between the water right of the defendant and the pre-emption right of the plaintiff’s grantor.
The findings of the court were excepted to upon the ground that the evidence was insufficient to sustain them, and it becomes necessary, therefore, to review the evidence, so far, at least, as to ascertain if there is a preponderance of the same against the finding of the court. It is contended by the plaintiff that the evidence is undisputed that the plaintiff’s grantor built a cabin upon this quarter section in the summer of 1876, and that in the fall of that year he left the Spearfish valley, and went to the state of Missouri, leaving the property in charge of an agent, and returned in the spring of 1877; but whether before or after the defendant made the location of his water right, the evidence is conflicting. Prior to February 28, 1877, when the treaty with the Great Sioux Nation opening up the Black Hills country to settlement was ratified, no legal rights could be acquired in the public domain, as up to that time the settlers were trespassers. Appellant contends, however, that, though the act of settlement of plaintiff’s grantor in 1876 was a trespass, yet, under the decision of Caledonia Min. Co. v. Noonan, 3 Dak. 191, affirmed by the supreme court of the United States under the title of Noonan v. Mining Co., 7 SCt 911, his acts prior to February 28, 1877, will be recognized. The headnote of that decision is as follows:
“Where a party was, on the 28th day February, 1877, in possession of a mining claim in the Black Hills of Dakota, within the Indian reservation, with the requisite discovery, with the surface boundaries sufficiently marked, with the notice of location posted, with a disclosed vein of ore, he could, by adopting what had been done, causing a proper record to be made, and performing the amount of labor or making the improvements necessary to hold the claim, date his rights from that day; and such location, labor, and improvements gave him the right of possession.”
Assuming that the principle established by that decision is applicable to agricultural lands under the findings of the court, Rosenbaum had not resumed possession of the land at the time the defendant made his water-right location. Undoubtedly, if Rosenbaum had been living upon, or in the actual possession of, his land when the country was opened up to settlement, or at any time prior to the location of the water right by the defendant, he might have availed himself of the acts done by him in the erection of the cabin, staking his land, etc,; but if, before Rosenbaum’s return,...
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