Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1878-08-03

proceedings az above; and alleging due
appeal with proper notice, AYERS that the
eaid Wilson "tl,en did, and ever since has,
an.! now does wholly disregard the same"
and again that the plaintiff Is without a
legal remedy, said parties defendants utterly
and fully disregarding the appeals as afore-
said in these premises being takcn,' ctc.
The affidavit Of Fred. w. Pettigrew, ac-
co onpxnying the complaint, AYERS that the
"appeal watduly taker, and properly made in
all respects" with notice thereof, and bonds
as provided by Law, etc But ii is therein
laiaeaea tasst the petitions ilson---.s and
those acting under him, ana in conjunction
with him. utterly and wholly disregard the
"sa,ne (,he appsaI), by continuing their
preparation to build the m Is III their
"pe,it',.n set fur,l,-by asserting teir deter
miadtion so 10 do, and by entirely neglect
ing and refusing 10 file the bond as bv law
"'hey are required 10 do. afi.r appeal''
The bond after appeal, referred to, is the
prescribed in the eleventh sccfisn of the
act.
Til. peculiarly Of the case heightened
wien ii is considered that, in tie complaint,
the plaintiff sets forth his right and title as
being entirely derived from, the said Francis
Arrow, by deed dated May 3O.h, 1878, To-
wit: Four months after the inception Of
Wilson's proceedings, an,l nearly two months
after Arrows appeal. From the complaint
itself, it would reen,, therefore, that the
plaintiff, during Wilson's proceedings, was
in no condition 10 require any notice what
ever. Afyoa was then the admit. d owner
of the land. And having quired his title
pending, and before, trial in The court, NAV
the plaintiff not intervene i'll the proceeding
in the manner pointed ont in section 80 Of
the Code Of Civ. Procedure: An injunction
should not issue where the party has his
remedy at law, or by appeal, or proceedings
in the nature Of appeal.
But is the plaintiff case in any wav
helped by bis affidavit made the 26;h Of
July, 1873? This affidavit was offered on
the hearing, in pursuance Of the Practice
authorized by section 1876 of Pr C. Code.
It's introduction was obj .cs.l to, because
1t is not in response to the defendants aft
davit, bu. sets up new matter ros IN the
complaint, and vitality essential to be stated
therein. Certainly, the plaintiff may oppose
"f,1dav:ts on the part Of the defendant, hv
affidavit or other proofs. Il this aff1lsvi, in
op'osatto', to any facts alleged il the defep-
dart sff1 'avit? The $,l,a, m snc., hea--
'g, ;:qntes into facts, bv proofs, sustain
ing or coniroveiting tie allegations coniaiE-
q! j" The cnmolairt. This order WIS Grant
Cd TN 'he verified conalaii.i and the afll Ia
vit of +. W. Pcttigrew-anl on these alone
Against these, tho defendants were notified
to show cause, aiili rot agains. new and dis
tinct matter necessary IL. he cnntainc, in
the complaint, and ittrolucel at the hca.-
ing.
But without, ct present, deciding this
point, and assuming lt,st the affiaasittn uNes
tion was properly read. whs! then is The al
titu1e ofthe plaintiffs case! We are forced
back to the primary and controlling inquir,
OF the plaintiffs right, underany grant from
Arrow. And from all the lights thus far
afforded, that right is. To- say the least. vc,y
doubtful and uncertain
AS to the other portion uf the comDl.int,
which is In the nature of exceptions 10 ,ha
proceedings and report Of the commissions
ers,-it is sufficient TO state that, for most
obvious reasons. it neei n,t i've further
attention at this time and in this moGe.
However. in summing up the entire case
as thus presented. and in order to cnusslva
all possible rights of the plaintiff, as we'll as
to eDabl: the defendants to have reasonable
time to examine the new matter set ua,-
have concluded to retain the motion for a
temporary Injunction for further hearing
and advisement, and add to the order to
show cause further order restraining the
erection Of the dam until the bond be given
rcqnl!ec bv the eleventh section of CHI SO
ef the code nf Civil Procedure.
And now, the second day of August, 1878
after hearing and on consideration, it is
further ordered, that the said defendants,
JAMES Wilson and Decatur BidwelI, their
agents and servants, refrain from the cree
ton OF the said dam across the Big Sioux
river, until they shs'l have executed and
filed bond in accordance with the proviso
in section eleven Of Chapter 80 OF the Code
of Civil Procedure. relating TO "Mill Dams
and Mills" PETER G.. SuASSoS.
Judge.