Tubbs v. Custer City
| Decision Date | 24 March 1928 |
| Docket Number | 6243. |
| Parties | TUBBS v. CUSTER CITY. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Custer County; Walter G. Miser, Judge.
Suit by Newton S. Tubbs against the city of Custer City. From an order overruling defendant's demurrer to the complaint it appeals. Affirmed.
Ed. L Grantham, of Rapid City, and H. O. Hepperle, of Aberdeen, for appellant.
H. M Lewis, of Hot Springs, for respondent.
This is an appeal from an order overruling defendant's demurrer to plaintiff's complaint. The complaint alleges that during the year 1879 the plaintiff located a homestead on certain premises, then constituting a part of the public domain, adjacent to or adjoining the town site of the city of Custer; that he raised continuously upon said homestead until the year 1903, when a patent to said premises was issued to him by the government of the United States, and that plaintiff ever since has been and now is the owner in fee simple of said premises; that at all the times above mentioned there was located upon said premises certain springs of fresh water that were fed by percolating waters in and under the surface of said premises; that, though varying in volume, the flow of water from said springs was continual; that from and after plaintiff's settlement upon said premises in the year 1879 he made use of and depended upon the waters from the said springs for domestic and agricultural purposes, and that said use was continuous and uninterrupted from said date down to the year 1902; that during the year 1892 plaintiff erected a large dwelling house on said premises and sunk a well to a considerable depth, which well was fed and supplied with water percolating through the soil on the premises of said land, and that the said water in said well and the water from said springs were used by plaintiff for domestic and agricultural purposes and furnished plaintiff with a plentiful supply of water for such purposes until the same was interrupted by the acts of the defendant hereinafter set out; that on or about the year 1902 the defendant, by and through its agents and servants, entered into negotiations with the plaintiff whereby an agreement and arrangement was reached to the effect that the defendant might take and use for the use and benefit of the inhabitants of said city such quantity of water supplied by said springs and percolating through the soil of plaintiff's said land as plaintiff did not need for domestic and agricultural purposes upon his said premises; that under said arrangement defendant was to take water "only to the extent of the surplus and excess over and above such water as plaintiff desired to use or needed to use from said source, and, further, it was understood at said time, between defendant and plaintiff, that defendant should install hydrants or conveniences for obtaining such water from said supply for plaintiff, if the same should be found necessary or desirable by plaintiff; that, acting upon such permission, defendant caused a well to be dug on the private lands of plaintiff herein, over or near said springs, and caused a pump to be placed therein, connected by lines of pipe with a reservoir, which reservoir was connected by distributing mains or lines of pipe laid throughout the town site of defendant, from which mains or lines of pipe the inhabitants of defendant might draw their water supply, all of which constituted and now constitutes the water system of defendant"; that from and after the installation of said pump and pipe lines until the wrongful acts hereinafter complained of the defendant pumped water from the said springs for its water supply, but took only so much thereof as was in excess of the water used and needed by the plaintiff for the purposes above set out; that later on the defendant took said water in increasing amounts until it "drained the main springs in the vicinity of its well, and from time to time would lower the water in the spring under plaintiff's dwelling to such an extent as to cause plaintiff inconvenience and shortage in his water supply, and that on some occasions it was necessary for plaintiff to supplement, to some degree, his water supply from other sources," but that such occurrences were too infrequent to cause plaintiff material inconvenience; that the defendant gradually increased the quantity of water taken by means of said pump and pipe lines and practically drained the said water supply until about the month of June, 1925, plaintiff, in order to secure a proper and sufficient supply of water, and compelled to and did lay a line of pipe and connect his house with the pipe lines of the said defendant and acquired his water supply in that manner and without charge or objection from the defendant until on or about the 5th day of January, 1926, the defendant claimed and demanded pay from the plaintiff for the water so used and threatened to cut off plaintiff's water supply entirely, unless he paid for said water as demanded by the defendant, and that, in order to obtain a water supply sufficient for his dwelling and other uses, he was obliged to, and did, comply with the said demand and pay for the water so used by him, but that he paid the same under protest and took a written receipt from the treasurer of the defendant city, showing that said payment was made under protest and the grounds on which said protest was based; that the defendant threatens to and unless enjoined and restrained by this court will continue to harass and oppress the plaintiff and compel him to pay for the use of water which belongs to him and is taken from his own premises.
Plaintiff prays judgment permanently enjoining and restraining defendant from further interference with the flow of so much of the water from the said springs as is necessary and desirable for the use of plaintiff on the said premises, for damages, his costs, and for general relief.
Defendant's demurrer is based upon the ground that the complaint does not state facts sufficient to constitute a cause of action. By its demurrer defendant admits all the foregoing facts, and it would seem that a mere statement of said facts is sufficient to show that plaintiff is entitled to the relief demanded in his complaint.
Defendant contends that plaintiff is not entitled to recover because at the time defendant first went upon the premises the title thereto was in the government....
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