Lone Tree Ditch Co. v. Rapid City Electric & Gas Light Co.

Citations

• 16 S.D. 451
• 93 N.W. 650
• 1903 S.D. LEXIS 105

Syllabus

<p>1. Comp. Laws, § 5080, provides “the verdict oí a jury” shall be deemed to have been excepted to. Section 4756 provides that the word “verdict” includes the findings of fact of a judge. Held, that in an action tried to the court the sufficiency of the evidence to support the findings of fact may be determined on appeal without exceptions being taken to such findings.</p> <p>2. Comp. Laws, § 5593, limiting the time for the commencement of an action to recover damages for land overflown by reason of a mill dam, has no application to an action to restrain one from maintaining a dam, or interfering thereby with prior water rights.</p> <p>3. In an action to restrain defendant from maintaining a dam or from interfering with plaintiff’s use of the water for irrigation and domestic purposes, evidence examined, and held to show that defendant’s custom of holding the water during the day and letting it down in large quantities during the night was the immediate cause of an injury to plaintiff, who used the water for irrigation and domestic purposes.</p> <p>4. Where the waters of a stream, across which a dam had been constructed, were capable of driving the machinery there situated only when the water was retained during the day and discharged at night, and where this procedure was the only thing in connection with the use of the dam of which the owners of prior water rights could justly complain, an injunction against the maintenance of the dam was not justified, a restraining of the injurious practice being sufficient.</p>