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

IN 4 o1N tI1x1 0V 04NA4N0s 3
cnnidcr this act as within tho scnps nj tie
Legislative suthorit5
But the well recognized principle mRst
steadily be kept in view, thai, whenever, in
pursuance Of a statute, the property Of an
individual Is to be divcsted by proceedings
against his will, there must l,e strict COM
pliance with all the provisions Of the law
which are made for his protection and bene-
fit. Aud those provisions must be regard
cd In the nature nf conditions precedent,
fore the rlght,Of the property owner ia dis
tuEi,cd, hnt.l party caaiaaines anihasiis nas
der the adverse proceeding g!nust affirmative
ly show such compliance.
These proceedings fry ;he assessment. of
damages. teing statutory, displacc ,hs usual
remedies; and the case is not one where, in
the first instance and us a matter Of right,
the party is entitled to trial by jury. This
he may have upon appeal. The party
seeking the appropriation, who keeps with
In the statute, is not, generally, liable to a
common-law action: anu it is only where
he fails to follow the statute that hc renders
himself liable as trespasser; though ii he
construct his work in careless, NJ g g'igept,
and improper manner. by means of which
carelcssness, negligence, or improper con-
struct'on party is injured in his rights, he
may have an action, aa in other cases of in-
jurious negligence.
A Ia:'y injured has the same right to
notice of the time and place of assessment,
as he would have in any other case of Judi
cial proceedings; and tie assessment will
he invalid if no such notice ls given. See
Hood Y Finch, 8 Wis, Dickey '. Tennison,
q Mo. 1853; Tuslumue Water Go. " Chap.
man: Gal S9s: Bensley v. Mountain Lake
Co. 13 Cal. 307: Curran v. Shsttuck, "a Cal.
432; Hicks v. Michael, Is Gel. 1O7
The principles mentioned seem to have
been carefully followed by the legislative
assembly in the act to encourage the erec-
ton of mill-dams and mills; for, in the frs,
section, it is provided that party may OBJ
tain the right TO erect and maiDtaln dam,
"1y proceeding as IN this act provided" {"
Which means of course, that there must be
full and strict compliance with the pre-
visions of the act. before the right can be
acquired. The second section prescribes
the presentation of a petition to the Judge,
and what the petition must contain. The
third section requires ,he Judge to appoint
commissioners to inquire touching the mat
tcrs contained in the petition The fifth
section imposes upon the commissioners the
duty Of giving notice, at the request of the
petitioner, of The time, plsce, and object of
their meeting, to every peiso:: na;ned by the
pttitioucr. The sixth ;oI is particular
as to the time and manner of the notice;
whilst the seventeenth section prcscribes
an examination by the commissioners of the
point ut which the dam is proposed to be
erected, and the lands above and below.
which will probably be injured by the erec.
tion and il is pointed as to the duty of the
commissioners 70 hcar the allegations and
testimony Of all PARTIES INTERESTED. after
which herring. the commissioners shall
proceed t., make a separate assessment of
damages, etc.
The tenth section provides for appeals by
any party interested The thirteenth sec
ton provides that. upon an appeal to the
court, there shall be a trial BY Jury, unless
the parties otherwise agree; and by the
fifteenth section, the judgment upon YER
dict is specially formulated to-wit-that up
on payment OF the damages assessed by the
court or jury, as tue case may be, and costs,
II any, the right to erect and maintain the
mill dam aforesaid. according to the petit
ion, shall, as against the parties interested
i'll such verdict, be and remain in the petit
ioDer, his heirs and s.signs, forever, sub
ject to be lost as hereinafter provided, and
p,yments Of such judgements made es nav.
ments Of assessment. etc.
The easement or right of flooding the
lands OF Others. is the object of The petition
er and the extent of the servitudc, as 10 be
seen in the form Of the judgement, is TO the
petitioner, his heirs md assigas .toyeoe,.
lCivil Code, Sec. 244 And it would seem
that the mere priority of statutory appl:ca
tion for such easement, should determine
the priority of the right See Sec 10 of the
Act; 2 Washburn op Real property, aa!.
322.
This glance iii the statute sut.ices to show
that the uttncs. care should be employed in
the preparation of tho petition, and In the
drafting of lhs report Of the proceedings of
the commissioners. To legally acquire So
important right in pcrpe,uity, involves as
has been seen. strict compliance with all
the prerequisites Of the act. And aotice
to Ill parties adversely Interested, is one
Of these essentials. Tie right cannot be
obtained, except by proceeding as in til.
act provided. This is the legislative will !;
and the petitioner, at every step, proceeds
at his own risk aud peril he is bound To
act in good faith. aud t, take care tina, every
person interested shall have an opportunity
w w ASoA0 ouo w ONCA 11C uiNSt
act with an honest intention to abstain from
tiking any unconscientious advantage o!
another, even through the forms or techni-
calities Of the law.
But the defendants on the hearing, IN
showing cause against all order for TEN
porary injunction, disputed and denied
any right or title on the part of this plain
tiff, and his right thus to intervene by sepa.
rate action. They read an affidavit alleg
that Francis Arrow, plaintiff s grantor, is a
Sioux Indian; ond claiming that under an
act of Congress in such case provided, the
said Indian had not, and has not now, any
power of alienation Of the lands. No coun.
ter affidavit denied the fact as to his being
Sioux Indian. In order to proper uI-
derstanding, it is important to consider that
that the original proceedings under the
Mill-Dam Ace, were instituted by James
Wilson. the petitioner, on the Gath of jan
uary. 1878; on which day his petition was
presented to the judge, anl an order was
made appointing commissioners, and fixing
the 18th of February for their mce,inr