Sturgis advertiser. (Sturgis, Dakota [S.D.]) 1887-1???, 1896-06-04

other words he answers, that 1t by put
tiny more stock to one Of these water
holes drinking up the water and tramp
ing mp the ground the water is dimin.
ished, then there ought not to be any
dlmlnution where il has been fenced up
and stock has been kept away from Ut
and where it has boon protected. There
10 evidence that goes to show that these
water holes fenced up have diminished
somewhat, but to what extent there is 1
not any evidence in this case that The /
court can determine definitely what the |
quantity rs. Again, defendant claims
there has been more piOwed land, and
that more springs have dried up upon
the benches, and that the lands ON the
benches have been brought under state
or cultivation, and that therefore the
water that once flowed down
there INTO these water holes and Teplen-
ished them have been kept away. How
muchS There ia not any evidence here
by which the court can determine. The
court 10 asked again to enter into
field OF coniuctnre. The defendant put
on witnesses to show that there had not
been any dlminution but nearly allo
them did not reside on the creek. they
had ranches from quarter TO half O
mile distant and saw it occasionally and
had no particular interest in ID, except
perhaps IN these water holes outside
where their stock went to drink, and
perhaps very few Of them had AZ good
facilities or the interest TO observe that
the plaintiffs would have had. A. / say
perhaps ali the evidence there is upOn
this point from which the court can de-
termine whether or NOT whether that
water II unrnolested would reach the
lower part OF the creek. 10 this evidence
OF less depth OF water in the wells
since they were constructed. Again,
the defendant answers TO that shat the
climatic conditions have been such that
10 can be accounted for by natural causes
dryness, lack Of rainfall, and some evil
Gence has been introduced as TO what
a was dry season and what was o wet
season, but not one Of tho witnesses
who attempted TO speak upon IT, has
kept any observation npo1 it at all. or
conld Tell perhaps within 2 or B inches
what the rainfall in o month or any
series OF months during the year over
which they testified. In other words
upon that point perhaps il was sort OF
guess. T have finally come to this In
ference, perhaps the only one I can
/ draw, because the weight OF evidence
|; tcompeis me TO draw at, that there ie
. since the construction OF these reser.
| yoirs diminished supply OF water down
there. How much, do not know; but
= that is the evidence. Ia
It is alleged by the defendant thu
; burden Ia upon the plaintiff TO establish
I all these allegations, and all these factl
material 10 his recovery IN this case
. and that 10 true Our supreme Cour
, has lard down the rule that as TO q
! spring, where there lie no evidence t
! show that il is "a natural or running
j spring, they will presume it rs causeC
] hy percoiation. What 10 the presnmp
! ton that must be applied where o wei
= known and we'll defined channel is prov
: en- and that water runs therein durin
Il certain season OF the year, and cha
water is found there dnring other POI
I tioDs OF the season standing in hole
= and pools. Is it not the fair presumpt
4 ion that ID comes there In the natura
= way, tO-wlt, along the course OF I'll
= channels l., have. concluded this IN
= shall 60 find, and. shall flnd that u
water has been dlmi 7ished by the az
I Of the defendant by this diversion
The quantity il il impossible TO dete
- mine, and perhaps it ID not necessaI
- for the purposes of this case. Now I
~ to what relief shall be granted q
fagaln In doubt. The ultimate result
- this case must affect q large number
- people besides those who have in 1t
peeuniary interest, affect their comic
- and their health. IT is in eyideDr
q this water is used in this town for ii
purposes and domestic purposes al
7 soon 10 be used at Fort Meade. A pc
:, menent injunction stopping this, or I
an moving this dam deprives them OF wha
ever benefits they may get ont OF
W aadI have concluded in order that u
- case may go TO the Supreme Con
@ speedily and these questions settl
- that 7 will grant tins injunction b
=. that 4 will give the defendant leave
apply for suspension OF it, by fling
stay bond, il the case ia to- go TO ii
- Supreme. Court until II can be hea
:, there. think perhaps wall have th
- - power IL so, no one would be inconve
% fenced IN the case is speedily taken !
. and gets into the September term.
- being OF public Importance no don
3; the Supreme Court will put 10 ON /
' special calender and il woRld be dispo
- cd OF finally in that mode. will
Z, the tax tond at $1,000. The plant
- viii prepare his finding accordingly.
"a After q careful perusal OF the abo
oh decision the many difficulties encou
ut tered BY the court M arriving at
NO conclusion are apparent. - Ed.
as NERVOUS Troubles are due
III z. n 4 KW NNa ~