Sturgis advertiser. (Sturgis, Dakota [S.D.]) 1887-1???, 1896-06-04
Judge PIoNman's Decision.


vOirs 10 convey waters ~ the tOwb 81
Sturgis. Az 10 ownership Of plaintiff
land along Alkali Greek the defendant
denies any knowledge, information 81
belief. Then denies fIat plaintiffs o
either OF them have been at any time o
are now deprived Of any water which for
merly ran through their lands by ans
OF the acts Of defendant. As 10 the al
legation the plaintiffs have been lcft
without water, the defendant deniog tha,
IL has any knowledge or information
sufficient TO form n belief. ALEC 40 d
the question Of damages the same nj
lagation. Then deuies specifically tha
the absence Of water In saId stream
meaning Alkali Greek, IL caused solel y
or IN any degree Whatever by tho act,
of this defendant
Without criticislng counsel nj Nil,
must say TINT the evidence In this case
10 very upsatisfactory. IL will be seet
that The important issnes are largely H.
saes OF fact First, IL the point wier(
these waters are Diverted part OF AIkaI
Creek. If no, IL Alkali Greek running
stream or water channel within tht
meaning Of the law. Third, II II liz, wal
il aud 10 IL, running stream through
the lands Of the plMntifFY And did the
waters now beng diverted by the defen!
dent formally and iu n natural manner
flow down through AIkali Greek through
the lands Of these plaintiffs or any oi
them? Agaip, are tho waters that HrG
diverted by the defendant waters of n
RAINING stream, or waters from natural
springs THAT form the source OF run
ning Btreau,s or are they merely percol.
ating watersy IL liz pppafent 10 any
one at all familiar with the conditions OF
the country that the determination OF
these facts vii have a wider scope per,
haps IN this circuit tLNu their effect up.
on the stream that is under consider
alton IN this case. IL calls for def,
milton bf whnt is uienut by a running
stream, for the definition of what IL n
natural stream, aud for definition oi
what are percolatipg waters under our
statute. These questions have never
been fully determined by our Supreme
Court, only partially at least, a d
then IN that ease the court waa very
particular 30 limit what ,lt said to the
particular case under consideration
So that We are without gladanee from
that court as 10 what medpipg must be
given as TO these SECTIONS n our statutes
Again, II these springs are natural
springs and the eonrce Ot tj.0 channel,
that IL, AlkalI Greek, wouldltua waters,
if' not diverted 10y tho dtTendubt, reIleh
the lands of these pldihtiffs? II II
would, then they arc deprived OF a alib,
stantial right and are injured to aome
extcnt; " not, their diversion could
cause them no INJURY and they would
have no cause of complaint. a..
Sec. 277l Ia as follows: "rhe owner
OF the land owns water standing thereon,
or flowing over or uuder lts surface, bat
not forming dehnite stream. Water
running IN definite stream, formed by
nature over or under the surface, may
be used by him as long aa IL remains
there, but he mHy not prevent. the
natural flow Of the stream, or OF the
Gatural spring from which IL commen.
ces it's definite course, nor pursue a0r
pollute the same" 3...,.,@."
Sec. 3llG. In addition 10 tho mai.
ters required by Section 2902, every
corporation formed for tho purpose ot
constructing "A ditch 10 convey water 10
any mines, mills or lands, To be used for
mining manufacturing, milling, or for
the irrigation OF lands, must IA the
articles OF incorporation specify aa
follows: The stream or streams from
which the water il TO be taken: the
polnt or place on sNid,, stream at or near
which the water. ~ 10 be taken out; the
line OF aald ditch as near as may be,
and the use 10 which the said water is
intended to be applied"
Section 3ll7. ANY ditch corpora,
tion shall have the right OF way over
tho line namsd IN the articles, Wnd shall
also have the right 80 run the water, OF
the. stream or streams named la the
article, through their ditch; provided,
that the line proposed shall not inter.
.fere with any other ditch whose rights
are prior 10 those granted under this
article, and acquired by virtue Of such
articles OF Incorporation. Nor shAll the
water OF any stream be diverted from
its original channel TO the detnment OF
any miners, millmen, or others along
the line al sald atreanl, who may have a
priority ot right; aud there shall ho at
all times left sufficient water IN said
stream for the use ~ miaera ana Rgri.
oulturists along said stream,
II will be conceded ut once that "
PLAINTIFF were the owners Of land &C.
quircd from the unlted Statea, aud that
II they were PRIOR TO the diversion ot
any water by the defendant, IL AlkRli
atream was a running stream, that by
the acquisition OF the title 10 these
laDda they acquire certain rIghtp to the
water. generally known and called npari.
an rights, that IL, right 10 uec those
waters while they were upon oi howing
over their lands FOR stock or domestic
purposes, without atoppins TO enamerate
ether Nses they might put the water to,
II then becomes question IN thla oaae
ae to right between riparian owners and
Of the defendant Who haa either acquired
right 10 this water by means of looa,
lion undcr The etAtOtes ~ thW state, or
by virtue OF tho nght In these waters
coming from sheee sprlnge for the reason
that the waters are part ot the land IL.
selt,
As / aNy the evidence In thle eAae Ia
very naaahafaetorv, and 10 atUdying II
over II seems TO me---perhape u waa not
within the roach or the means ot The
parties In this case, bur NJ eeeMa "a me
that sosne ot these qaeassoNs might have
been definitely demonstrated by praeh.
cal esperimentl to.w,A I mean that nv