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4. APPEAL AND ERROR-REVIEW-DISCRETION | scribe the limits within which wooden buildOF LOWER COURT-INJUNCTION.

ings should not be erected or placed or reThe dissolution or continuance of a preliminary injunction rests largely in the trial

paired without permission, when the time for court's discretion, the exercise of which will not which permission had been given had expired, be disturbed on appeal, in the absence of abuse. the city had the right to require said build

[Ed. Note.---For cases in point, see Cent. Dig. ing to be removed, as provided by the terms vol. 3, Appeal and Error, 83818-3821.)

of the contract, and upon the failure of the Appeal from Circuit Court, Lawrence plaintiff to cause such removal upon due noCounty.

tice on the part of the city, the city had the Action by Horace S. Clark against the city right to tear down or remove the same. In of Deadwood and another. From an order the view we take of the case it will not be dissolving a restraining order, plaintiff ap necessary, in this opinion, to determine the peals. Affirmed.

question as to the right of the city to cause Samuel C. Polley, for appellant. Norman

the removal of said structure independently T. Mason, for respondents.

of the contract, and we therefore express no

opinion upon that question. CORSON, J. This is an appeal from that

By subdivision 50 of section 1229 of the

Political Code it is provided that the city part of an order of the circuit court of Law rence county dissolving and discharging a

council shall have power to "prescribe the temporary restraining order. The action was

limits within which wooden buildings shall instituted by the plaintiff to enjoin the de

not be erected or placed or repaired without fendant, the city of Deadwood, from remov

permission.” And respondents contend that, ing or taking down a certain one-story frame

in granting such permission, it was competent structure, situated within the fire limits of

for the city to limit the time the same should the city of Deadwood. A temporary restrain

continue. It appears by the contract introing order was issued upon the complaint, but

duced in evidence that the city bad granted upon the hearing the same was dissolved.

to the plaintiff and his associate permission It is disclosed by the record that a con

to erect said building, in which it was stiptract was entered into between the city of

ulated by the said city that "said structure Deadwood, the plaintiff, and one S. N. Corn

should remain upon said lots until April 1, wall, whose interest the plaintiff has ac

1905, upon the conditions therein specified." quired, permitting the erection of the said

It was further stipulated, on the part of the building, under and by the terms of which

owners of said building, that in case they the owners of the building were required to

should fail to remove the same by the 1st remove the same on the 1st day of April,

day of April, 1905, in that event, said city 1905. In the contract was the condition that,

should be authorized and empowered to reif the owners of said building should make

move said structure bodily, or to tear it down application in writing to the city council of

and remove the material therein as said city said city at least 30 days prior to the ex

might elect, the cost or removal of said buildpiration of said contract for an extension of

ing, in case the owners should fail to remove the period of the same, and such extension the same as thereinbefore stipulated, to be should be granted, then, in that event, the borne by the said owners as therein specified. time for the removal provided for in the It will be observed, therefore, that the plainsaid contract should be extended upon the tiff expressly stipulated that the city should same terms and conditions specified in the have a right to remove the said building or said agreement, but taking effect at the date tear the same down, at the expense of the of the expiration of said extension, in lieu

owners, in case they failed to remove the same of the 1st day of April, 1905. On the hear- at the time specified, according to the stipulaing no extension of time was shown to have tion in said agreement. The city on the been granted on the part of the city, and hearing established the fact that it had servthereupon the court dissolved the temporary ed notice upon the plaintiff to remove said restraining order. It is contended by the ap building, and that the plaintiff had failed to pellant that the extension of time was, in comply with such request, and, the plaintiff fact, granted as requested by the plaintiff. having failed to prove to the satisfaction of but that the city auditor failed to make the the court that any extension of time had been proper entry thereof in the city record, and granted, the city clearly had the right, unthat the city waived the stipulation as to der the terms of the contract, to cause its retime by receiving a license fee for several moval. months subsequently to April 1st.

The evidence, introduced on the part of the It is further contended by the appellant plaintiff, tending to prove that the city had that, if in fact there was no extension or accepted a license fee of $10 per month, imwaiver of the time mentioned in the contract | posed upon the business carried on in said or application for the extension of time, the building, for several months subsequently to city council has no authority, under the law, April 1, 1905, did not, in our opinion, have to tear down or destroy the plaintiff's build- the effert of extending the time stipulated ing. It is contended on the part of the city in the contract as to the removal of the buildthat, as the city possessed the power to pre- | ing.

It is further contended by the appellant , especially fruit and ornamental trees--or that, assuming there was no extension of injury to a dwelling house or other occupied time or waiver of the same, the city council | building, or where the trespass complained of bad no right, under the law, to tear down or is repeated and continued, and may occasion destroy the plaintiff's building, that the con- a multiplicity of suits to recover damages, tract between the city and the plaintiff was and in certain other special cases, not necultra vires, and therefore void from the be essary to mention. In the case at bar the inginning, and could not legally be enforced by jury threatened does not go to the destructhe city council, as the statute prescribes tion of the estate, and is not one calculated to when the city may destroy or remove a build- give rise to a multiplicity of suits, and not ing, and that the case at bar does not come one, as we have before stated, in which it within any of the provisions of the statute would be impracticable to ascertain and upon that subject. But we are of the opin- prove the damages sustained, and is not one ion that this contention is untenable, for the for which adequate compensation may not reason that, if the agreement between the 'be recovered in an action at law. It is quite city and the appellant should be deemed in- clear, therefore, that no case is presented for valid as a contract, yet it was within the the interposition of a court of equity by inpower of the city council to permit appellant junction.” Clearly, in the case at bar, the to build or repair the structure in question threatened injury does not extend to the dewithin the fire limits of the city, and to lim struction of the estate, is not one calculated it the time as to the continuance of the said to give rise to a multiplicity of suits, and is structure. The city, therefore, having grant not one in which it would be impracticable ed this permission to erect the building upon to ascertain and prove the damages, and is certain conditions, which were accepted and not one for which adequate compensation agreed to by the plaintiff, he, having received may not be recovered in an action at law. the benefit of that permission, cannot now be It is disclosed by the tecord that the buildbeard to question the authority of the city ing in controversy, as before stated, was a to make such a contract. The contention of | frame wooden building, and was used for the the appellant that, under and by the terms of purpose of a skating rink and dancing pathe contract, he and his associate were vilion. There would be no difficulty, there. granted permission to erect the building, but fore, on the part of the plaintiff in proving the limitation under which the permission the value of the building, or the damages was granted was not binding upon the plain sustained by him by its destruction, and in tiff, is clearly untenable. The city, however, recovering from the city such value or damcontends that, the permission having expired ages which, in the absence of an allegation by limitation of time, and the appellant hav to the contrary, it must be presumed the city ing consented that upon such expiration the would be able to pay, in case the city should city might remove the structure, should he be held liable for damages. It is quite clear. himself fail to do so, the court could not therefore, that it was not a proper case in properly grant an injunction, thereby modify which a court of equity could be called upon ing and changing the contract under which to exercise its equitable powers. It also may the permission was granted, and substitute be regarded as a well-settled rule that the the judgment of the court in the place of that dissolution or continuance of a preliminary of the city council in making the contract. injunction rests largely in the sound judicial It is further contended on the part of the

r contended on the part of the | discretion of the trial court, and its action city that no case is presented that would will not be disturbed on appeal, unless the warrant the court in granting an injunction: 1 record shows an abuse of such discretion. (1) For the reason that the alleged threaten

Bank of Scotland v. Bliss, 10 S. D. 178, 72 ed trespass is not one coming within the

| N. W. 406; Dickson v. Dows, 11 N. D. 407, class of trespasses that will be enjoined by a 92 N. W. 797; 10 Enc. Pl. & Pr. 1029 ; 2 court of equity; (2) that there was no al

High on Inj. $ 1467. legation or proof tending to show the in Under the facts, therefore, disclosed by solvency of the city and that such an allega

the record in this case this court cannot say tion is essential to be shown before the equi that there was any abuse of its discretion by table powers of the court could be invoked.

the trial court in dissolving the restraining We are of the opinion that this contention | order, and the order of the circuit court is on the part of the city is correct. In Beatty therefore affirmed. v. Smith, 14 S. D. 24, 84 N. W. 208, this court had occasion to review and examine the powers of a court of equity in restrain

SIMONSON v. MONSON. ing trespass committed upon real property,

(Supreme Court of South Dakota. July 8, and in that case this court said: “From the

1908.) authorities it would seem that the threat

1. INDIANS — ALLOTMENTS -- CONVEYANCES – ened injury which the court of equity will VALIDITY. enjoin is one going to the destruction of the

Cong. Allotment Act Feb. 8, 1887, 8 5, 24

Stat. 388, c. 119, makes void a conveyance of substance of the estate, such as, extraction

allotted Indian lands made within 25 years. of ores from mines, cutting down trees- | Act Cong. March 3, 1905, 33 Stat. 1007, c. ent.

1479, authorized the issuance of a patent to a , and the defendant excepted. The plaintiff specified Indian for his allotment. Under Rev. also introduced in evidence the deed executed Civ. Code, § 947, subd. 4, where one purports by proper instrument to convey land in fee

by the said Quinn to the plaintiff purporting simple, any subsequently acquired title passes to be executed the 30th day of May, 1905, to the grantee. Held. that the Indian's war and acknowledged on the 3d day of July, ranty deed dated May 31, 1905, and recorded

1905, but not recorded. The admission of June 2d, was valid, and passed title, as against his deed of July 10th, recorded the same day,

this deed in evidence was also objected to though the patent was not issued until June on the ground that it appears to have been 29th, the act of March 3d impliedly repealing

executed on May 30, 1905, long prior to the said provision of the allotment act as to the particular land; and the deed of May 31st im

issuance of the patent in fee to said Quinn, parting constructive notice to the subsequent and on the further ground that said deed grantee that title acquired by the Indian under had not been recorded. This objection was his patent would pass to the prior grantee.

overruled, the deed admitted, and the de2. APPEAL AND ERROR-REVIEW-FINDINGS. That in an action involving land the trial

fendant duly excepted. The defendant in court made no finding as to ed under which. support of his title offered in evidence a plaintiff claims does not preclude the Supreme deed purporting to be executed by the said Court on defendant's appeal from a judgment for plaintiff from considering such deed, since

Quinn to himself bearing date of the 10th the finding that plaintiff was the owner neces day of July, 1905, and acknowledged and sarily includes any deed in evidence conveying recorded on the same day for the same premtitle to him.

ises. The defendant then offered in evidence Appeal from Circuit Court, Roberts County. chapter 119 of volume 24 of the United States

Action by E. J. Simonson against Otto Statutes at Large, which was received in Monson. From a judgment for plaintiff, evidence over plaintiff's objection. This and from an order denying a new trial, de statute is set out in the abstract, and will fendant appeals. Affirmed.

be subsequently referred to. The defendChester L. Caldwell and Howard Babcock,

ant then offered in evidence the act of March for appellant. Frank McNulty, for respond.

3, 1905, which was admitted without objection.

It is contended by the defendant and apCORSON, J. This is an action to de

pellant that the deed purporting to be exetermine conflicting claims to a tract of land

cuted on May 31st by said Quinn to the in Roberts county. The complaint is in the

plaintiff and recorded on June 2d was void, usual form, and alleges that the plaintiff

for the reason that it was executed prior is the owner in fee and in possession of the

to the issuance of the patent; that the secpremises. The answer is a general denial;

ond deed purported to be executed by Quinn admits plaintiff's possession; and alleges

to the plaintiff on May 30th and acknowlownership as an affirmative defense, and

edged on July 3d not being recorded was ownership as a counterclaim. Both par

ineffectual as against the appellant, who had ties claim title under Henry A. Quinn, an |

no actual notice of the execution of said Indian allottee, under the act of Congress deed, and no constructive notice of the same, approved Feb. 8, 1887, 24 Stat. 388, c. 119, and that therefore the appellant acquired generally known as the “Indian Allotment a good title to the said premises as against Act.” By act of Congress approved March the plaintiff by his deed of July 10, 1905. 3, 1905, 33 Stat. 1067, c. 1479, the Secretary The plaintiff and respondent contends (1) of the Interior was authorized to issue a that the deed executed May 31st, and recordpatent in fee to said Quinn, and said final ed June 2d, was a valid deed, as it was patent was issued June 29, 1905. Prior to | executed subsequently to the act of March 3, the last date and on the 31st day of May, | 1905, notwithstanding it was executed prior 1905, plaintiff obtained from said Henry A. to the issuance of the patent; that it said Quinn a warranty deed dated and acknowl deed executed May 31st, and recorded June edged May 31, 1905, which he had recorded in 2d, was not valid and did not convey the the office of the register of deeds of Roberts premises then the deed bearing date of May county on the 2d day of June, 1905. On the 30th and acknowledged July 3d, and delivtrial the plaintiff introduced in evidence the l ered to the plaintiff by said Quinn on that patent from the United States to said Quinn | day, being a full warranty deed was good which was admitted without objection. He as against the appellant's deed which was then offered in evidence the deed executed simply a quitclaim deed; that the possession May 31, 1905, by llenry A. Quinn to himself of the plaintiff of the premises in controbearing date of May 31, 1905, and recorded versy constituted constructive notice to the June 2, 1905. This deed was objected to on defendant of respondent's ownership of the the ground that the deed was incompetent property, and that such deed was therefore and irrelevant for any purpose, and as being good and valid as against the defendant's absolutely void under the statutes of the quitclaim deed, and that the court was thereUnited States, being apparently executed, fore right in making its finding and enteracknowledged, and recorded long prior to ing judgment in favor of the plaintitf. the issuance of the patent to the said Henry The act approved February 8, 1887, known A. Quinn. This objection was overruled, as the "Allotment Act,” provides, among other things, that where, by treaty or stipu- , and hence his conveyance, though made prior lation, the Indians occupy a reservation the to the issuance of the patent, had the effect same may be surveyed and allotted in sever of transferring to the plaintiff the title acalty to the Indians occupying the same. By quired by him under his patent. section 5 of the act it is provided “that upon Plaintiff's warranty deed of May 31st the approval of the allotment provided for having been duly acknowledged and recorded in this by the Secretary of the Interior, he imparted constructive notice to the defendshall cause patents to issue in the name of ant of plaintiff's right to the property, and the allottees which patent shall be of the that any title that might be acquired by legal effect, and declare that the United Quinn under his patent would pass by operaStates does and will hold the land thus al tion of law to the plaintiff. Bernardy V. lotted, for a period of twenty-five years in Mortgage Company, 17 S. D. 637, 98 N. W. trust for the sole use and benefit of the In | 166, 106 Am. St. Rep. 791; Same v. Same dian to whom such allotment shall have been (S. D.) 105 N. W. 737; Zerfing v. Seeling, made * * * and that at the expiration 12 S. D. 25, 80 N. W. 140; State v. Kemmerof such period the United States will convey er, 14 S. D. 169, 84 N. W. 771. the same by patent to said Indian or his The contention of the appellant that the heirs as aforesaid in fee discharged of such court made no finding as to the deed of May trust and free of all charge or incumbrance 31st and recorded June 2, 1905, and therewhatsoever. Provided that the President fore that deed is not properly before the of the United States may in any case in his court, is untenable, as the court finds that discretion extend the period. And if any the plaintiff is the owner of the property and conveyance shall be made of the land set entitled to its possession, and this finding apart and allotted as herein provided or any necessarily includes any deed introduced in contract made touching the same, before the and admitted in evidence conveying to the expiration of the time above mentioned such plaintiff the title. conveyance or contract shall be absolutely The views herein expressed render unnecnull and void."

essary the consideration or discussion of By the act of March 3, 1905, it is provided the nature and character of the plaintiff's "That the Secretary of the Interior is here- | possession and the nature and character of by authorized and empowered to issue a the deed from Quinn to the defendant, and patent to Henry A. Quinn" for the premises also render unnecessary any consideration in controversy in this action.

or discussion of the rulings of the court on We are of the opinion that the deed exe the motion for a new trial, based upon the cuted by Quinn to the respondent bearing | grounds of newly discovered evidence, and date of May 31st and recorded June 2d was the other questions presented by the record a valid deed, notwithstanding the inhibition in this case. contained in the act of 1887 before quoted, The judgment of the circuit court and the same having been executed after the order denying a new trial are affirmed. act of March 3, 1905, which in effect repealed by implication the clause in the act of 1887 making any conveyance or contract before the expiration of the 25 years absolute DRISKILL et al. v. REBBE et al. ly "null and void" so far as the premises

(Supreme Court of South Dakota. July 8, in controversy are involved, and that the

1908.) court properly overruled the defendant's ob

1. PLEADING – AMENDMENTS BEFORE TRIALjection to its admission in evidence.

DISCRETION. Subdivision 4 of section 947 of our Revised

The only limitation on the power of the Civil Code provides: “Where a person pur

court to permit amendments to pleadings is

that an amendment made at, or after, the trial ports by proper instrument to grant real

so as to conform to facts proven, or facts in property in fee simple, and subsequently ac support of which proof is offered, must not quires any title or claim of title thereto,

change the cause of action or defense, but with

in reasonable limits any amendment may be the same passes by operation of law to the

permitted before trial, though it changes the grantee or his successors." The deed execu cause of action or defense. ted by said Quinn to the plaintiff bearing [Ed. Note.-For cases in point, see Cent. Dig. date of May 31, 1905, acknowledged on the | vol. 39, Pleading, 88 686-709.] same day, and recorded on June 2d, is a | 2. WATERS AND WATER COURSES--ACTIONS TO full warranty deed, purporting to grant the

DETERMINE RIGIITS - PLEADING – AMEND

MENT. property in fee simple to the plaintiff, and

Where plaintiffs in their original complaint therefore by it the title acquired by Quinn claimed that defendants were only entitled under his patent issued on June 29th passed

sufficient water to irrigate 15 acres under a upon tbe issuance of the patent by operation

contract pleaded, it was not an improper exer

cise of discretion for the court before trial to of law to the plaintiff under and by virtue permit plaintiffs to amend the complaint so as of the provisions of the statute above quoted.

to allege that they were owners of a certain

water right and were entitled to the amount of The act of March 3, 1905, had the effect of

water designated in the notices of location leaving Quinn free to convey the premises, therein.

3. PLEADING – AMENDMENT OF PLEADINGS - ant Elizabeth Rebbe has appealed. The orig. WAIVER OF OBJECTIONS.

inal complaint was drawn upon the theory Defendants, by answering an amended complaint without objection, waived their objection

that there was an existing contract between to the amendment.

the defendants Rebbe and wife and the [Ed. Note.-For cases in point, see Cent. Dig. grantors of these plaintiffs whereby the devol. 39, Pleading, $8 1408-1412.)

fendants Rebbe had a right to the use of suffi4. APPEAL AND ERROR-FINDINGS-CONFLICT

cient of the water of Crow creek for the irING EVIDENCE-REVIEW. Findings of fact by the trial court on con

rigation of 15 acres of their land underlying flicting evidence will not be set aside on appeal, plaintiffs' ditches. The defendant Rebbe anwhere the Supreme Court is unable to say that

swered, admitting the execution of the conthe preponderance of the evidence is against them.

tract as alleged in the plaintiffs' complaint, (Ed. Note.-For cases in point, see Cent. Dig.

but denied that he had any authority to do vol. 39, Pleading, 883983–3989.)

so, and alleged that his wife owned the land 5. WATERS AND WATER COURSES – WATER referred to. The defendant Elizabeth Rebbe RIGHTS-IRRIGATION-PRIORITY.

answered denying all of the allegations of Where the water rights under which plaintiffs claimed title were located prior to any set

the complaint. Subsequently and before the tlement on the lands by defendant's grantors, trial the plaintiffs obtained leave to file and plaintiffs were entitled to priority, both under serve an amended complaint, which was Rev. St. 88 2339, 2340 (U. S. Comp. St. 1901, p. 1437), securing and preserving such priority

thereupon served and filed. The defendants of location, and under the custom in force in separately answered the amended complaint the territory.

without objection thereto. At the beginning 6. MORTGAGES – TRUST DEEDS - CONSTRUC

of the trial the defendants objected to the TION. Where a deed of trust vested in the trus

introduction of any evidence on the part of tee no power of sale in case of default, but the the plaintiffs for the reason that the amendbeneficiaries were required through the trustee ment to plaintiffs' complaint entirely changto apply to the court by a bill in equity for a

ed the character of the action to an action foreclosure decree, the deed was in fact a mortgage constituting only a lien on the property, for damages for conversion of water. This leaving the title in the grantors.

objection was overruled, and the appellants 7. SAME-ACTIONS FOR PossessION OF PROP contend that the court erred in permitting ERTY-PARTIES-INTEREST.

the plaintiffs to offer evidence under the said Plaintiffs were not deprived of the right to sue to protect their alleged water rights ap

amended complaint. purtenant to certain land by having given a It is contended by the appellants that the deed of trust thereon, which was in fact a amendment is not within the discretion of mortgage.

the court, as it changes the character of the 8. EVIDENCE — RECORDS - PUBLIC LANDS DUTY OF SETTLEMENT OR ENTRY.

action even though such amendment was In a suit to establish water rights, the rec made some five months before the trial, and ord of the evidence introduced in the United that the amendment in question did change States Land Office, in proof of the entries on

the plaintiffs' cause of action. the land, was mere evidence in an ex parte proceeding, and was therefore inadmissible to show It is contended by the respondents that an the time when settlement or entry was actually amendment made prior to the trial may made under the homestead or pre-emption laws.

change substantially the claim or defense, 9. WATERS AND WATER COURSES – WATER RIGHTS-DECREE-CERTAINTY.

and that the only limitation upon the power Where, in a suit to determine water rights, of the court to allow amendments is that an the decree necessarily fixed the amount to w

amendment made at or after the trial so as plaintiffs were entitled as the carrying capacity

to conform to facts proven, or facts in supof a certain ditch and from the excess awarded to defendants 30 inches, and declared that plain port of which proof is offered, must not subtiff's were not entitled to take any water from stantially change the cause of action or de the source of supply to another ditch until de

fense. We are of the opinion that under fendants' 30 inches were supplied to her, the decree was not vague and uncertain as to the

the decision made by this court in the case amount of water plaintiffs were entitled to as of Murphy v. Plankinton Bank, 18 S. D. 317, against defendants.

100 N. W. 617, the respondents are right in Appeal from Circuit Court, Lawrence their contention. In that case after a careful County.

review of the authorities this court reached Action by William D. Driskill and anoth- | the conclusion that the limitation prescribed er against Elizabeth Rebbe and others. | in the statute only applied to amendments From a decree for complainants, and from an made on or after the trial, and hence that order denying defendants' motion for a new an amendment which changed the nature of trial, they appeal. Affirmed.

the action could be made before the trial A. J. Plowman, for appellants. John R.

within reasonable limits. It is true the Wilson and Martin & Mason, for respondents.

plaintiffs in their original complaint claimed

that the defendants were only entitled to CORSON, J. This action was instituted by sufficient water to irrigate 15 acres under a the plaintiffs to restrain the defendants from contract set out in the complaint, and that diverting the waters of Crow creek so as to in their amended complaint they allege that interfere with the rights of the plaintiffs to they are the owners of a certain water right, the use of the same. Findings and judgment and are entitled to the amount of water being in favor of the plaintiffs, the defend- designated in the notices of location therein.

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