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Show THE RIPARIAN RIGHT 103 In South Dakota, the State supreme court held that the forfeiture provision of an early State water appropriation statute528 was void as against a riparian owner, but valid as against an appropriator without a riparian right.529 In 1955, the South Dakota Legislature repealed this earlier provision and substituted another forfeiture provision which expressly only applies to "appropriated water."530 Thus, in South Dakota the riparian landowner is apparently under no requirement to continue using the water to the extent of his vested right (acquired by beneficial use under the 1955 cutoff provision531) after the time the right accrued, or run the risk of losing the right for nonuse.532 The Nebraska Supreme Court, in an early case, held that an appropriator might restrain upstream riparians-who had not diverted water until after the appropriative right had vested-from now diverting an injurious quantity from the stream, leaving the riparians to an action to recover damages if any had been sustained.533 In another case, on general demurrer, it was held that a lower riparian owner could not enjoin continued use of water by an upstream appropriator who had lawfully acquired an appropriative right, constructed works, and put the water to beneficial use, but must rely upon his action to recover such damages, if any, as he might sustain thereby.534 But in a 1966 case, the Nebraska Supreme Court changed its former rule that riparians could only maintain an action to recover damages against an appropriator. The court held that a lower riparian could enjoin an upstream appropriator depending upon a balancing of the interests involved and the appropriateness of injunctive relief as determined from certain factors. The court considered the following factors as entering the balancing process on the side of the appropriator: (a) the social value which the law attaches to the use of which the appropriation is made; (b) the priority date of the appropriation; and (c) the impracticability of appropriative rights that were formerly riparian rights. See the discussion in chapter 6 under "Interrelationships of the Dual Water Rights Systems-The Status in Summary: By States-Alaska." This legislation has not been construed by the Alaska Supreme Court. 528 S. Dak. Laws 1907, ch. 180, § 46. This provided that "When the party entitled to the use of water fails to beneficially use all or any part of the water claimed by him, for which a right of use has vested, for the purpose for which it was appropriated or adjudicated, for a period of three years, such unused water shall revert to the public and shall be regarded as unappropriated public water." 529St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 268, 148 N.W. 124(1913). 530 S. Dak. Laws 1955, ch. 430, § 1, Comp. Laws Ann. § 46-5-37 (1967). 531S. Dak. Comp. Laws Ann. § 46-1-9 (1967). 532 See also the discussion at notes 231-234 supra. S33McCook In. & Water Power Co. v. Crews, 70 Nebr. 109, 115, 96 N.W. 996 (1903), 102 N.W. 249 (1905). S34Cline v. Stock, 71 Nebr. 70, 79, 98 N.W. 454 (1904), 102 N.W. 265 (1905). This and the McCook case, cited in the preceding note, are discussed in more detail in chapter 13 under "Remedies for Infringement-Injunction or Damages or Both-Some State Riparian-Appropriation Situations-Nebraska." |
