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Show NORTH DAKOTA 585 water and of riparian rights in surface streams remained on the books for 7 years after the last amendments to the water code in 1957. Its eventual repeal in 1963 was probably occasioned by an excellent article on North Dakota water law in 1962.49 A brief outline of the present version of the appropriation law may perhaps suffice to indicate its scope. Public waters include the fol- lowing classifications and require a permit before they may be ap- propriated: (1) Surface waters whether flowing in well-defined channels or flowing through lakes, ponds, or marshes which constitute integral parts of a stream system, or waters in lakes (diffused sur- face waters are expressly excluded); ground water, whether per- colating or flowing in well-defined channels; (3) all residual water resulting from beneficial use, and all waters artificially drained; and (4) all waters (excluding privately owned waters)60 in areas deter- mined by the State engineer to be noncontributing drainage areas (any area which does not contribute natural flowing surface water to a natural watercourse at an average frequency oftener than once in 3 years over the latest 30-year period). The statute on its face appeared to accord no recognition to riparian rights in use at the time of its passage.51 Constitutional problems thus arose as to riparian rights prior to 1905, unused riparian rights before and after that date, and subterranean perco- lating water. The constitutional problem was particularly acute as to the latter category because the 1866 act (not repealed until 1963) declared such water to be privately owned. The validity of the appropriation statute was tested in 1968 in Baeth v. Hoisveen.62 At issue were the rights of the plaintiff, a land- owner without a permit, to divert ground water beneath his land to the detriment of the defendant, a neighbor whose application for a permit was pending before the State engineer. The latter applica- tion was in fact granted on the ground that it was prior in time to plaintiff's application which was belatedly filed after he had spent a substantial sum on drilling a well. The court held that a land- owner has no vested right to unused ground water and therefore the appropriation legislation up through 1963 did not deprive him of property without due process of law, under either State or Federal constitutional provisions. It is interesting to note that the plain- tiff's expenditures on his well occurred before the statute on absolute ownership of percolating water was repealed in 1963. The Baeth case relied upon Knight v. Grimes,™ decided by the South Dakota court in 1964, and also upon earlier decisions in 49 V. Larson, The Development of Water Rights and Suggested Improvements in the Water Law of North Dakota, 38 N.D. L. Rev. 243, 258-275 (1962). For a briefer dis- cussion, see W. Hutchins, A Regional View: Riparianism-Appropriation Conflicts in the Upper Midwest, 38 N.D. L. Rev. 278, 280-81 (1962). 60 It has been suggested that this could only mean Impounded water which has become personal property. See V. Larson, note 49, at 263. a Until It was repealed In 1963, Section 61-01-01.1 seemed to constitute some recog- nition o/ riparian rights. It declared: "The several and reciprocal rights of a riparian owner, other than a municipal corporation, In the waters of the state comprise the ordi- nary or natural use of water for domestic and stock watering purposes." This is much narrower than the early decisions which defined riparian rights, and there has been some suggestion that the statute abolished all riparian rights except for domestic or stockwaterlng purposes. B215T N.W. 2d 728 (N.D. 1968). 63 80 S.D. 517, 127 N.W. 2d 708 (1964). |
