Terry v. Heppner

(dissenting.) This case was brought to prevent defendants Heppner from diverting the waters of Plum creek. In so far as the waters of Plum' creek consist of storm and flood waters, the complaint does not state a cause of action. Benson v. Cook (S. D.) 201 N. W. 625, decided Dec. 18, 1924. I fail to find any allegations in the complaint that show that the waters of Plum creek constitute a “definite stream” within the meaning of section 348, Rev. Code 1919.

Therefore, upon the authority of Benson v Cook, supra, no cause of action is alleged unless it be under the “Dry Draw Act,” chapter 180,…