Farwell v. Sturgis Water Co.

Citations

• 10 S.D. 421
• 73 N.W. 916
• 1898 S.D. LEXIS 11

Syllabus

<p>1. Water from a spring on defendant’s land disappeared, within the limits thereof near a canon, which, about two miles further on, joined with another channel to form the bed of a stream flowing through plaintiff’s land. To prove that the water from this spring, before its diversion, formed part of such stream, plaintiffs introduced evidence that since such diversion the water in such stream, and in the wells and pools near by had perceptibly diminished. Defendant showed that since such diversion there had been less rainfall; that the timber about certain other spring's, from which water flowed into the stream, had been cut; that more land had been plowed and more stock kept along the stream; and that, in the canon located near the point where the water from the spring- disappeared, water flowed only for a few days during- the season of heavy rain; and two geological experts testified that the formation in the vicinity of the spring was such as to exclude any probability that the waters thereof, after disappearing on defendant’s land, reappeared to form part of the stream. Held, that the evidence was insufficient to show that the water from the spring formed part of the stream.</p> <p>2. When the trial is by the court, and the findings are excepted to, the appellate court is required to review the evidence.</p> <p>3. Where the issue was whether the water from the spring formed part of the stream, a personal examination of the spring and stream by the . trial judge, not being authorized by law, will not be regarded by the appellate court in considering the sufficiency of the evidence on the issue.</p>