Volume 75 — South Dakota Reports

<bold>1. Taxation.</bold> Failure to serve notice of intention to take a tax deed is a jurisdictional defect, and an action to set aside the deed for that reason is not barred by three-year statute of limitations. SDC 57.1119. <bold>2. Taxation.</bold> Where county published notice of intention to take a tax deed, and affidavit of completed service stated that record owner was nonresident and address was unknown, but former address of record owner appeared on duplicate tax receipts, failure of county treasurer to mail notice to last known address as indicated by duplicate tax receipts of record owner, rendered attempted service ineffectual and county did not acquire title to property. SDC 57.1119.

<bold>1. Limitation of Action.</bold> Estoppel may not be asserted with effect of shortening statutory time unless elements of estoppel clearly appear. <bold>2. Estoppel.</bold> An "estoppel" arises, where, by conduct or acts, a party has been induced to alter his possession or do that which he would not otherwise have done to his prejudice. <bold>3. Waters and Water Courses.</bold> Where dam constructed in 1934 on a river running through defendant's land was never maintained, and was washed out in 1951, plaintiff, who purchased land upstream in 1943, was not estopped from maintaining action to enjoin defendant from maintaining dam rebuilt over plaintiff's objections, although plaintiff purchased land with knowledge of existence of dam. <bold>4. Waters and Water Courses.</bold> Where club proposed that dam be rebuilt and upstream landowner objected to the proposed rebuilding, the club could not assert estoppel as against the upstream landowner seeking injunction even after the dam was rebuilt. <bold>5. Waters and Water Courses.</bold> Fact that money had been expended in 1948 in construction of home overlooking a small lake formed above dam built in 1934, did not estop upper riparian owners from maintaining suit to enjoin maintenance of dam which washed out in 1951 and was rebuilt in 1952. <bold>6. Waters and Water Courses.</bold> Upper riparian owners whose land was damaged by maintenance of dam on lower land did not have duty of notifying each builder of house which overlooked impounded water that it was upper riparian owners' right within prescriptive period to cause removal of dam. <bold>7. Estoppel.</bold> Silence can never be the basis of an estoppel unless there is a duty to speak. <bold>8. Waters and Water Courses.</bold> Where dam constructed on land of lower riparian owner increased water level of river more than two feet with result that drainage of upper riparian owner's land was retarded and water seeped into his land, there was a "flooding" within statute permitting lower owner to construct dam across non-navigable stream, in absence of flooding of land of another. SDC 61.0101.<page_number>Page 162</page_number> <bold>9. Appeal and Error.</bold> The Supreme Court must accept that version of the evidence which will support trial court's judgment, in injunction action.