
    KIPPEN, Respondent, v. GRANT COUNTY MILLING COMPANY, Appellant.
    (157 N. W. 496.)
    (File No. 3906.
    Opinion filed April 11, 1916.)
    Waters and Water Courses — Damages for Violating Injunction-Seepage from Reservoir — Directing Verdict — Sufficiency of Evidence.
    In a suit for damages resulting from seepage of water -from defendant’s reservoir, in violation of a previous decree enjoining defendant from discharging water and steam into its reservoir without laying certain tiling, held,. that, there being no evidence that the defendant did so use the reservoir to the injury of plaintiff since date of decree, the trial court erred in refusing to direct verdict for defendant.
    Appeal from Circuit Court, Grant County. Hon. Joseph H. Bottum, Judge.
    Action by Thomas Kippo-m, against Grant County Milling Gompamy, a corporation, ;to . recover damages resulting from defendant’s .failure to comply .with, a previous injunction ■ concerning the 'discharge o>f water into a reservoir. From a judgment for plaintiff, and1 from an order denying a motion for a new trial, defendant appeals.
    Reversed'.
    See, aso, 36 S. D. 220, 154 N. W. 443.
    
      Kaercher & Freerks, for Appellant.
    
      Frank McNulty, -for Respondent.
   WHITING, J.

This is, an appeal from' a judgment and an order denying a new trial. Certain preliminary matters were presented to this court, relating toi the settlement of the record herein by the trial court. We have examined these matters, and find that the record1 has been duly and regularly settled, so that the case is now properly before us upon the assignments of error, being the same as the specifications of error found! in the settled reoord.

In the year 1911 the plaintiff procured a decree, granting a permanent injunction against defendant, restraining defendant from from discharging water and steam into a certain reservoir situated-on 'its premises, unless prior to September 1, 1911, it should lay certain tiling between such reservoir and plaintiff’s premises, to prevent the seepage of water from -such, reservoir into the cellar under a house situated on such premises. Alleging that the defendant had failed to comply with the 'order of the court in relation to the laying oí such, 'drainage pipe, that, after September i, 1911, it had continued to use such reservoir for the discharge of water and steam from its milling plant, and that such water from such reservoir had seeped in and upon the premises of plaintiff, injuring him, this action, was 'brought, to recover damages claimed through such injury. At the close of plaintiff’s, testimony, and again at the close otf all the testimony, the defendant asked for a directed verdict uip'on the ground that the evidence wholly failed to show that defendant had, after September 1, 1911, ever used such reservoir for the purpose of discharging water and steam from said mill. This motion was overruled and, upon such ruling, was based one of the assignments of error herein, and the only one we find it necessary to consider. There was absolutely no evidence warranting the jury to find that these defendants had discharged into said reservoir from such mill, since September 1, 1911, any water that seeped in and injured the plaintiff, and the court should 'have directed the verdict prayed for by the defendant.

For the above error, the judgment and order appealed from are reversed.  