Sturr v. Beck

• Decision Date: 31 May 1888
• Citation: 6 Dak. 71,50 N.W. 486
• Parties: Sturr v. Beck.
• Court: South Dakota Supreme Court

50 N.W. 486

6 Dak. 71

Sturr

v.Beck.

Supreme Court of the Territory of Dakota.

May Term, 1888.

Appeal from district court, Lawrence county; Charles M. Thomas, Judge. Affirmed.

Action by Daniel Sturr against Charles W. Beck to enjoin defendant from interfering with an alleged water-right and ditch of plaintiff. Judgment for defendant. Plaintiff appeals.

The case was submitted on the following agreed statement of fact:

“(1) That in the month of June, 1877, the plaintiff, Daniel Sturr, settled upon 160 acres of land, in what is known and called ‘Falsebottom,’ in Lawrence county, D. T., through which Falsebottom creek flowed; and on the 15th day of May, 1880, at the United States land-office, in Deadwood, Dak., filed his application to homestead the south-east quarter of the north-west quarter, the east half of the south-west quarter, and the south-west quarter of the south-east quarter, of section 35, township 7 north, range 3 east, B. H. M., containing 160 acres, which he afterwards, on March 10, 1883, proved up on at said land-office, and for which a United States patent issued to him December 20, 1883; and that said plaintiff has resided continuously upon, and cultivated a part of, said land since his settlement in 1877. (2) That in March, 1877, one John Smith-the immediate grantor of the defendant, Beck-settled upon 160 acres of land in the same locality, situated immediately south of and adjoining said Sturr's claim, and through which said Falsebottom creek flowed, as shown in the diagram on page 7; that on the 25th day of March, 1879, at the United States land-office in Deadwood, Dak., said John Smith filed his application to homestead the” said land, “which he afterwards proved up on at said land-office, on March 10, 1883, and for which a United States patent issued to him December 20, 1883; and that said Smith resided continuously upon said land, from his settlement in 1877 until he sold the same to Beck, in May, 1884. (3) That said John Smith sold, by warranty deed purporting to convey the fee, to said defendant, Beck, on May 1, 1884, the before-mentioned homestead adjoining that of Daniel Sturr, and delivered to him at the time the United States patent which he had received; that the defendant took possession of the premises, and has lived there continuously ever since, and cultivated a good part of the same. (4) That the plaintiff has had under cultivation, the past three years, not less than seventy acres, sowed in wheat, oats, and hay, and planted in vegetables; and that the defendant has had similarly sowed and under cultivation not less than fifty acres. (5) That on or about the 15th of May, 1880, without a grant from John Smith, the occupant and claimant, the plaintiff located a water-right on said Smith's homestead claim, at a point on the north bank of Falsebottom creek, a few rods south of the south line of said lot 2, where the creek turns to the west; posted a written notice there, claiming the right to divert 500 inches of the water of said creek, miners' measurement, calling the...