Willadsen v. Crawford

• Decision Date: 04 November 1953
• Docket Number: No. 9378,9378
• Citation: 60 N.W.2d 692,75 S.D. 161
• Parties: WILLADSEN v. CRAWFORD et al.
• Court: South Dakota Supreme Court

Page 692

60 N.W.2d 692

75 S.D. 161

WILLADSEN v. CRAWFORD et al.

No. 9378.

Supreme Court of South Dakota.

Nov. 4, 1953.

Roger Lohman, Parker, Bielski, Elliott & Lewis, Sioux Falls, for appellants.

Bogue & Masten, Canton, for respondent.

RUDOLPH, Judge.

Plaintiff seeks to enjoin the defendant Crawford from maintaining a dam across the Vermillion river. The dam is located on land owned by defendant. The City of Parker, Lions Club of Parker and James H. Schaeffer have intervened. Intervenors take the position that the injunction should not issue. The trial court entered judgment in favor of the plaintiff. The defendant and intervenors, Lions Club and Schaeffer, have appealed. Facts are as follows:

Plaintiff owns land south of land owned by the defendant. The Vermillion river flows north through the land of the parties. In 1934 by means of a W.P.A. project the original dam was constructed on the land now owned by the defendant. At the time the dam was constructed an easement was granted by defendant to the State of South Dakota to build this dam with the right to flow the water on defendant's land. The dam was constructed of rock and dirt and was never maintained or repaired after being built. However, the dam remained until 1951 when it was washed out by the spring floods. Plaintiff acquired his land in 1943. Years ago 60 acres of plaintiff's land, which lie adjacent to the river, had been tiled and the outlet for the tile was the river. In June of 1952 the Lions Club of Parker contacted the plaintiff about rebuilding the dam. The plaintiff protested but the dam was rebuilt. The result of the dam is that water in the river channel across plaintiff's land is raised more than 2 feet. The raising of the water level places the outlet for the tile on plaintiff's land under water.

Plaintiff testified that during the time the dam was out his drain tile worked in a satisfactory manner and that it did not do so when the water was held back by the dam. He further testified that it appeared with the dam in the river there was seepage into his land from the increased height of the water and the land did not drain naturally because of the higher water in the river.

Intervenor Schaeffer built a home on a high point of ground a short distance from the river and overlooking the river directly across the river from plaintiff's land. He testified that he would not have built this home at that point had it not been that the dam backed up the water in the river and made what is referred to as a small lake. The Lions Club restored the dam with the object in view of making a small park or recreational area along the bank of the river on certain land owned by the defendant Crawford. This statement of the facts is sufficient for our present purpose.

The appellants make three principal contentions --1st, that plaintiff is estopped from maintaining this action because he bought his land knowing that the dam was in existence; 2d, plaintiff cannot maintain this action because others, especially intervenor Schaeffer, have expended money in improving their property relying upon the dam being kept in its present condition; 3d, plaintiff has failed to prove any damage due to the existence and maintenance of the dam.

There is no contention that defendant has acquired any right to maintain the dam because of the running of a prescriptive period. No easement of any kind has ever been granted by plaintiff or prior owners of plaintiff's land. Appellants' first and second contentions are therefore devoid of any claimed legal right to maintain the dam. The question presented in appellants' first contention is simply whether plaintiff's purchase of the land after the construction of the dam and knowing of its existence estops him from asserting that defendant has no right to subject the property plaintiff purchased to the burden imposed by the continued maintenance of the dam.

Appellants rely on certain cases wherein minority stockholders of a corporation were held estopped from complaining of something which had occurred and of which they had knowledge before they acquired their stock. Cases cited by appellants are Von Schlemmer v. Keystone Life Ins. Co., 121 La. 987, 46 So. 991, Hawes v. Contra Costa Water Co., 104 U.S. 450, 26 L.Ed. 827; Dimpfel v. Ohio & M. R. Co., 110 U.S. 209, 3 S.Ct. 573, 28 L.Ed. 121. We deem it unnecessary to review each of these cases separately. In each case there was some fact or circumstance, such as acquisition of stock to expressly vex and annoy the company or subjecting the company to needless litigation, which prompted the court to deny the relief requested.

The question here presented concerns a right in real estate, i. e., whether defendant has acquired the right to burden the land which is now owned by the plaintiff with the continued maintenance of the dam. To hold that plaintiff is estopped as claimed by appellants would simply result in a reduction of the statutory time required to acquire such right by prescription. We do not determine that an estoppel may never be asserted which will result in a shortening of the statutory time, but if such be the result the elements of the estoppel should clearly appear.

An estoppel arises, where, by conduct or acts, a party has been induced to alter his position or do that which he would not otherwise...