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Show 682 SOUTH DAKOTA Then, 9 years after the Cook decision, the effect of the Desert Land Act was considered by the Supreme Court of the United States in California Oregon Power Co. v. Beaver Portland Cement Co.66 While Justice Sutherland's opinion in that case has generated much controversy,67 the decision did interpret the act as effecting a severance of water from land on the public domain and as a grant to the western states of the right to establish the appropriation system: What we hold is that following the act of 1877 if not before, all non-navi- gable waters then a part of the public domain become pufilici juris, subject to the plenary control of the designated states * * * with the right in each to determine for itself to what extent the rule of appropriation or the common- law rule in respect of riparian rights should obtain.68 The Cook case was cited by the court as an example of the way one state dealt with the problem of its system of water law prevailing after 1877. In Platt v. Rapid City,69 decided in 1940, the South Dakota Su- preme Court made a rather surprising switch back to riparian rights. Apparently overlooking the fact that the U.S. Supreme Court had cited the Cook case with approval, the South Dakota court felt that there was no definitive construction of the Desert Land Act at the time of the Cook decision (the U.S. Supreme Court decision in California Oregon Power Company came 9 years later), the Cook case was not binding as a precedent. Instead, believing that the U.S. Court had left the matter of the type of water law system open to the states, the court felt constrained to conclude that the Cook case was wrong and that the seven or so earlier cases approving the ripar- ian system properly reflected the law of South Dakota.70 It is fair to note that the Platt case did not correctly estimate the attitude of the State legislature, for in 1955 the State adopted for the second time a comprehensive appropriation law.71 The new act declared that all water within the State is the "property of the people, but the right to the use of water may be acquired by appro- priation in the manner provided by law."72 All "vested rights," however, acquired prior to the effective date of the act (Mar. 2,1955), were "in all respects validated." 73 In defining "vested rights," the principal thrust of the new legis- lation was to include only rights to water in actual use. More spe- cifically, the following vested rights were preserved: (1) The right of a riparian owner to continue to use water actually applied to any beneficial use of March 2, 1955, or within three years immediately prior to that date, but only to the extent, however, of the beneficial use actually made; (2) uses for domestic purposes (in another sec- tion of the act,74 "domestic use" is defined so as to exclude municipal 66 295 U.S. 142 (1935). 67 The most vitriolic is Goldberg, Interposition-Wild West Water Style, 17 Stan. L. Rev. 1 (1964). 88 295 U.S. at 163-64. 69 67 S.D. 245. 291 N.W. 600 (1940). to Compare Belle Fourche Irrig. Dist. v. Smiley, 84 S.D. 701, 176 N.W. 2d 239 (1970). 71 The statutes were amended and rearranged in 1960 and will now be found in 13 S.D. Comp. Laws Ann., 1967, Sections 46-1-1 to 46-1-11, 46-2-1 to 46-2-13, 46-5-1 to 46-5-46, 46-6-1 to 46-6-23 (the latter sections were again amended in 1970). For convenience, the statutes have been cited simply by section numbers. 72 Sec. 46-1-3. 73 Sec. 46-1-10. ¦"Sec. 46-1-6(4). |
