Stenger v. Tharp

• Decision Date: 07 April 1903
• Citation: 17 S.D. 13,94 N.W. 402
• Parties: EDWARD STENGER, Plaintiff and respondent, v. PAUL THARP, et al., Defendants and appellants.
• Court: South Dakota Supreme Court

17 S.D. 13

94 N.W. 402

EDWARD STENGER, Plaintiff and respondent,

v.

PAUL THARP, et al., Defendants and appellants. South Dakota Supreme Court Appeal from Circuit Court, Custer County, SD Hon. Joseph B. Moore, Judge Reversed Schrader & Lewis Attorneys for appellants. Wood & Buell Attorneys for respondent. Opinion filed April 7, 1903

CORSON, J.

This is an action to enjoin the defendants from interfering with plaintiff’s water right or diverting any of the water therefrom. Findings and judgment were in favor of the plaintiff, and the defendants appeal.

Plaintiff claims the right to practically all of the water in Battle creek by virtue of two certain appropriations of the same made by plaintiff’s grantors and predecessors in interest, and a location made by himself, and which he insists were prior and superior to any rights to the waters of said creek acquired by the defendants. The defendants on the other hand, claim both as prior appropriators and riparian owners, certain portions of the waters of said creek. The plaintiff is the owner of 2,600 acres, about 2,200 of which are riparian to said creek, and on which he uses the waters claimed by him for irrigating purposes. He does not, however, make any claim to the waters of said creek; in this action, as riparian owner.

The court, in its findings of fact, found substantially that in September, 1881, one ,John Carr, the predecessor in interest of plaintiff, located a water right on said creek for irrigation, domestic, and other useful purposes, to the extent of 100 inches,, miner’s measurement, and at the time of the said appropriation the same had not been appropriated by any other person or persons whomsoever; that, during the year 1882, Scurlock and Nunnally, the predecessors in interest of the plaintiff, located a water right on said creek to the extent of 200 inches, miner’s measurement, for irrigation, domestic, and other useful purposes; that in August 1890, the plaintiff located a water-right on said creek, claiming the waters thereof to the extent of 300 inches, miner’s measurement, for irrigation, domestic and other useful purposes, and that the said amount of water was and is necessary for the successful cultivation of plaintiff’s said lands, and, at the time of the diversion and appropriation of said waters of said creek by the plaintiff, the same had not been appropriated by any other person or persons whomsoever, except as aforesaid; that the volume of water flowing in said creek at its ordinary stages, and during the irrigating season, does not exceed 300 miner’s inches, and is insufficient and inadequate to properly irrigate the said lands riparian to said creek and lying under the aforementioned ditch; and that one inch of water, miner’s measurement, is necessary to properly irrigate ore acre of land in the valley of said Battle creek. The defendants claim that James Hertgering, with a number of others, made the first water-right location upon said creek, but the court finds that the said water right so attempted to be located was wholly abandoned by the said locators prior to the year 1886, and has never since been used by any person or persons. This finding, not being excepted to, must be taken as true, and this location will not he further considered.

The court further finds that in April, 1896, the defendants wrongfully and unlawfully diverted 200 inches of the waters of said creek from its natural channel, and thereby deprived the plaintiff of the use thereof.

The court further finds that on the 10th day of June, 1879; said Hartgering settled upon a certain tract of land fully described, riparian to said creek, and thereafter received a patent therefor; that Paul Tharp settled upon a tract of land riparian to said creek on the 21st day of June, 1881, and thereafter received a patent therefor.

The court further finds that John Carr settled upon land riparian to said creek on the 5th day of February, 1880, for which he subsequently received a patent. This tract of land was conveyed by Carr, together with his water right, to the plaintiff before the commencement of this action. The defendants Hanson occupied a portion of the land riparian to said creek as tenants of Hartgering.

It is contended on the part of the defendants that the Hartgering homestead was the first riparian right acquired on said creek, the Carr land owned by the plaintiff second, the. Swanzy land third, the other lands of the plaintiff Fourth and fifth, and the Tharp land sixth; and that when they settled upon the land they thereby appropriated the waters that flowed over the same, or a sufficient amount to irrigate the same.

The defendants further contend that the court erred, first in holding that a water right could be located upon said creek by which a prior riparian owner would be deprived of water sufficient to irrigate his land; and, second, that the court erred in finding that the Carr water right exceeded 50 inches, the Scurlock 40 inches, Nunnally 40 inches.

This court has recently held, in the case of Lone Tree Ditch Co. v. Cyclone Ditch Co.,(1902), that a riparian owner has a right to use the waters of the stream, not previously legally appropriated, for the purpose of irrigating his land, but that the said use must be reasonable, and not such as to exclude other riparian owners from the use of the waters of said stream for irrigating purposes. The court further held in that case that the rights of the riparian owner attach at the time of his settlement upon the land for the purpose of holding the same as a homestead or pre-emption. It will not be necessary, therefore, to discuss these questions in this opinion. How much water would be required for irrigating purposes by the parties to this action it: is not now necessary to inquire, as there is no finding by the court upon this question. The only question, therefore, necessary to be determined is, did the court err as to the amount of water plaintiff was entitled to divert from said...