Weidmeier v. Edelman

• Decision Date: 04 May 1953
• Docket Number: No. 9360,9360
• Citation: 75 S.D. 29,58 N.W.2d 306
• Parties: WEIDMEIER et al. v. EDELMAN et al.
• Court: South Dakota Supreme Court

Page 306

58 N.W.2d 306

75 S.D. 29

WEIDMEIER et al. v. EDELMAN et al.

No. 9360.

Supreme Court of South Dakota.

May 4, 1953.

John H. Zimmer, Marion, for appellants.

W. W. French anud Louis French, Yankton, for respondents.

RUDOLPH, Judge.

Plaintiffs seek to enjoin defendants from interfering with the natural flow of a watercourse. The trial court held defendants had not interfered with the flow and dismissed plaintiffs' complaint. Plaintiffs have appealed.

The facts disclose that defendants own land to the north of plaintiffs' land. On the north side of defendants' land there are two watercourses which eventually join while still on defendants' land, and then flow to the south. This dispute concerns the flow of this watercourse. Plaintiffs contend that the watercourse turns west while still on defendants' land and flows in that direction until it empties into a lake. Plaintiffs further contend that defendants have interfered with the flow to the west with the result that water is diverted south across plaintiffs' land and to their damage.

Defendants contend that the natural flow of the watercourse is south across plaintiffs' land, and it is only in the event of high water that there is a flow to the west. They deny having interfered with the natural flow.

A fact question only is presented. Appellants contend that the findings of the trial court are against the clear preponderance of the evidence. In the determination of the issue thus presented great weight of course, must be accorded the findings of the trial judge who had the opportunity of seeing and hearing the witnesses. It is the long established rule in this state that where the credibility of witnesses enters into the findings of the trial court such findings will not be disturbed unless the evidence clearly preponderates against them. The trial judge with the consent of the parties also viewed the premises and while such view is not evidence it enabled the judge more satisfactorily to weigh the evidence given in court. We must presume that this view was of some value in assisting the judge to determine the issues of fact. Lunden v. Brookings & Sioux Falls Railway Co., 31 S.D. 357, 141 N.W. 93, 95; Vick v. Moe, S.D., 49 N.W.2d 463, 465. The trial judge stated in his memorandum opinion:

'I have gone over the evidence in this case and have viewed the premises and am of the opinion that the water, in passing down over plaintiff's land, passed in the regular watercourse and that while there is some evidence that the water, in high water times, flows both ways, I could not say that the water was diverted by the defendants from their land to that of the plaintiff.'

It appears that the dispute concerning the flow of this watercourse is of long standing. As early as 1912 there was a dispute concerning the flow of the water, and at that time an earth and rock obstruction was placed in the watercourse or depression running south, and thereafter the water flowed in the watercourse to the west. In 1929 the tenant on the land now belonging to defendants, following a heavy rain, removed this obstruction in the south course to permit the water to flow therein. During the dry years commencing in 1930, the year after this obstruction was removed, there was not sufficient...