Deadwood Cent. R. v. Barker

Citations

• 14 S.D. 558
• 86 N.W. 619
• 1901 S.D. LEXIS 55

Syllabus

<p>1. Underground water, found in gravel or just above bedrock, with no fissure in the bedrock and no well-defined banks, which was not traced beyond the point where it appeared in a tunnel, does not constitute a running stream, within Comp. Laws, § 2771, providing that a landowner owns water standing thereon or flowing over or under its surface, but not forming a definite stream.</p> <p>2. Where plaintiff’s predecessor in title occupied land prior to its entry as a townsite, and excavated a tunnel extending into defendant’s land, appropriation of percolating water, found in the tunnel while the land was part of the public domain, did not give plaintiff a prescriptive right therein, so as to prevent an adjoining landowner from sinking a shaft on his own land, thereby diverting the water.</p> <p>3. Where a tunnel excavated on plaintiff’s land extended into defendant’s land, and defendant permitted percolating water to flow through the same, which water was appropriated by plaintiff at the -mouth of the tunnel, defendant was not estopped by his long-continued disuse of the water from diverting it on his own land, since plaintiff acquired no easement in defendant’s property, the use being entirely on plaintiff’s own land.</p>