State ex rel. Clark v. Deisch

• Decision Date: 17 April 1917
• Docket Number: 3813
• Citation: 38 S.D. 560,162 N.W. 365
• Parties: STATE OF SOUTH DAKOTA ex rel. S. W. CLARK, Attorney General, Plaintiff and respondent, v. JOHN DEISCH, Defendant and Appellant.
• Court: South Dakota Supreme Court

38 S.D. 560

162 N.W. 365

STATE OF SOUTH DAKOTA ex rel. S. W. CLARK, Attorney General, Plaintiff and respondent, v. JOHN DEISCH,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Aurora County, SD

Hon. Frank B. Smith, Judge

#3813—Judgment vacated

Fellows & Fellows

Attorneys for Appellant.

Bakewell & Bakewell

Attorneys for Respondent.

Opinion filed April 17, 1917

GATES, P. J.

Action to prevent defendant from draining Platte Lake. Judgment was entered for plaintiff. Defendant appeals from the judgment and an order denying a new trial.

The trial court found that the action was brought by the authority of the Attorney General pursuant to a request from the Governor of this state; that Platte Lake was a well-defined body of water situated upon six sections of land in Aurora county, and that it was a meandered lake. The trial court found further:

"That from and after about the year 1881 until in or about the year 1905 the said Platte Lake contained water varying in depth from one (1) to six (6) feet, according to the seasons; that in wet years the water in said lake sometimes extended up to the ordinary high-water mark, and in dry seasons receded from the shore line various distances in accordance with the quantity of water in the lake; that during a few years between 1890 and 1900, during a portion of such years the lake was very nearly dry, but never, at any time, entirely so.

"That said lake when normally full of water contains about one thousand one hundred (1,100) acres; that the banks thereof are well defined and the east and west banks are more particularly, so, the north and south banks being lower; that the water in said lake is derived from the drainage of a territory adjacent to said lake consisting of about seventy-five (75) square miles; that there are two creeks or draws opening into said lake, the same being Kimball creek, which flows into said lake from the northwest and which is about ten (10) miles in length, and Platte creek, which enters the lake from the north from a distance of about six (6) miles north of said lake, and which emerges therefrom at the south end of said lake.

"That at the place on the south bank of said lake where Platte creek emerges therefrom there was, prior to about the year 1905 and while said bank was in its natural condition, a depression not to exceed one (1) foot in depth through which water might flow from Platte Lake into Platte creek, on reaching a level of about four (4) feet above the bottom of the lake in front of said depression; that the natural drainage of said lake was by way of Platte creek, but that prior to 1905, or thereabouts, topography of said lake was such that it was possible for the said lake to contain water approximately four (4) feet in depth immediately in front of the depression on such south bank, without the same easing over the bank and draining into said Platte creek.

"That during nearly all the time subsequent to the year 1881 the said lake has been adapted to and is used by the people of this state, and more particularly those residing in the vicinity thereof for the purpose of boating, hunting, and for other like purposes; that said lake was in part covered with wild rice and rushes, and was generally frequented by ducks, geese and other wild fowl, and was frequented by those desiring to hunt and fish.

"That in or about the year 1905 the defendant cut away, and removed...