Scott v. Toomey

Citations

• 8 S.D. 639
• 67 N.W. 838
• 1896 S.D. LEXIS 93

Syllabus

<p>1. Where one makes a water-right location on unoccupied public lands of the United States opened up to settlement, his rights, thereto, under Rev. St. U. S. §§ 2339, 2340, as against one who thereafter settles thereon and pre-empts the lands, are not affected hv the fact that, while the lands were part of an Indian reservation, such pre-emptor built a cabin thereon, he having gone away before it was opened up for settlement, and not returned till after the water-right location was made; and it is immaterial that he left an agent in possession, as by Sec. 2259 a pre-emptor must make settlement in person.</p> <p>2. Where the lands on which one makes a water-right location are in fact unoccupied public lands of the United States, it is immaterial that it is at the time erroneously contended by another that the location is on lands claimed by him.</p> <p>3. Where one makes a water-right location on unoccupied public lands of the United States, but before he has constructed a ditch across the lands to conduct the water to his premises another acquires rights in the ‘lands as a pre-emptor, such pre-emptor, and one to whom he conveys the lands 15 years thereafter, will be e stopped to deny the right to maintain the ditch, the pre-emptor having been present when the ditch was surveyed and constructed, and having made no objection thereto during the 15 years he owned the land, and having by permission of the owner of the water rights, used surplus water from the ditch, and opportunity to make other water-right locations having been lost by the lapse of time and change in the condition of the country.</p>