Sturgis advertiser. (Sturgis, Dakota [S.D.]) 1887-1???, 1896-06-04
G. B. PARWELL et al, rs. THE STUR.
GIS WATER COMPANY.
OPINION OF the COURT.

In thls case Charles H. FaTwell, ct al.
brings an action against the Stnrgis
Water Company, and ia their compliant
ask for damages aud for permanent
Injunction, and that thu dams of the
defendant may be. removed. Upon
trial Of the action plaintiffs expressly
waived recovery OF an y. dadlages In tins
actlen but asked for tho injunction re.
'straiding the defendant tor maintaining
iaay dam on AIkali Creek or divertIug
any water therefron which ls not return
ed thereto.
After alleging the incorporation Of the
defendant under the avs Of the State
VI Sounh Dakota, plaintiffs alege that
they are residents Vt Meade County,
South Dakota, and Oh land through
which AIkalI Greek, rrnnlng stream Of
water has Its course. That sald Alkali
Greek is small stream of water which
raises ia the foot hills about tour miles
from the town of Sturgis In sail COUNTY
That said stream has "a general eastern
course and runs for abpat thirty miles
through said county VII an it empties Ia.
to the Bellefoarche river. Then follow
allegations that there ate other parties
interested tu this actlon, and that they
are too numerous TO JOIN, and alleges
that prior TO the acts complained OF on
the part OF the defent ant, the plaintiff
had ut all seasons Of the year sufii
cient supply OF water 'or stock and do.
mestIc purposes in sad stream.
In the third paragraph they allege,
that during the year 1872, the defendant,
the SturgIs Water Company, went TO
the head waters ot said Alkal, Greek, and
having erected dam Ia The said creek
diverted a large part of The waters Of
said creek frou rs natural channel, aud
never returned said water or any pOr.
tIOa thereof to it's natural channel
another dam aud took and diverted all
OF said water from sad Alkali Crepk,
and carried il by PIPES 10 the town Of
Sturgis. The said defendant prevents
by it's dams the mat aral ilow Of the
waters OF Alkali Crefb, aud does not
return any OF the vatre 50 taken To the
chauCel ga which il wouid naturally
t1w, That SaId. wat,r il used Mt sad
town OF Sturgls aud AZ Fort. Meade for
domestic aod fire purp oses, and the sur.
Ylus Eater rans into lsear BUTTE Croei~.
which ls a separate aud afstiuct creek
gr0n 'aelsMlI sCreek, Grd which ewphes
aISo into the .Bellskonfehs 4iwer: 'rhef.
alleges that said diversion Of water Ia
made by defendant under aud by virtue
OF pretended Eater Slght location pur.
porting TO have been tnAde by one J. j.
Davenport Oh February 20, 1892, and
amendment thereof rurportlug to have
been made bv defendant on April 90.
1895. That said Davenport conveyed
whateEeE right he had % said water
right to defendant 90 or about March 2,
1892 In the fifth paragraph follows
the allegation with the description OF
the lands owned by sume OF tho plain.
tiifs, with an allegation that there were
SO owned by the plaintiffs, aud plain
tIifs were ia possession OF said lahds
prior To the diversion or attempted dl-
version OF water bv the said Daven port
or his grantee. the dtfeudant company,
and that prior TO Huch diversion tue
waters of said AIkali Creek flowed over
and through said lands.
Ia the sixth paragraph, they nllege
that they have beeu deprived OF the
water that flowed through their lands
in Alkali Greek, and that the value ot
the lanis has been diminished thereby
and that the absence ut water flowing
in the streams Is caused solely by tho
acts of the defendant. That prior 20
SAID acts complained OF on the part OF
the defendant that they had ma ample
supply OF water il said Alkah stream
or creek.
Seventh, that said defendant In now
divertlng all OF che waters OF SAID Alkali
Greek. Eighth is Al allegation 40 to the
continuance OF tho az IA complained OF.
The defendant by it's answer makes q
general DENIAL as to all matters not ad-
mitted; 1t then admts IL is corpora.
ton as alleged in the complaint Takes
up the various parG graphs OF the com.
plant and denies tie same either abso.
lntely or upon Information. Ia the
fourth paragraph tie defendant alleges
the location ia 1872 OF one Joseph j,
Davenport OF certain water First IL
alleges that Davenport was tho owner OF
certain lands described in tho answer
aud alleged that upon sand land there
were certain small f'pnngs Of water, the
eame being percolanng Or under ground
water, running under surface Of sand
land, but not form ng definite stream,
and which oozed, seeped, peroolated
and came TO the fnrface OF said land IN
the form OF springs an aforesaid and
trickled aud flowed into a dry ravine
through which ware wont To run tho
waters OF local rams aud melting snows,
and thence ran TO- short distance np.
on the sald land ot Joseph j, Davenport
then disappearing wholly, by returning
again INTO the e,rth, within the limi.a
oi said land and real property hereinbe.
fore described, aad that no part ot the
waters OF said springs or tho waters OF
said melting snowF or rains aG any time
entered or beca'ne q part OF Alkah
Greek. Then comes the allegation az
10 the location by Davenport ou the 29th
OF February. 1892 as the owner of the
lands containing iae same, made a sur.
face location Of tbA water OF said spring,
and that he afterwards conveyed the
same TO defendant, and that defendant
thereafter went b. 'ow said spring where
they came 10 the surface, for the pur.
pose OF collecting and utihsing said
waters, that woNtld have otherwise re.