OCR Text |
Show THE RIPARIAN RIGHT 115 In 1955, the South Dakota Legislature followed the precedents set in Oregon and Kansas by defining vested rights as including the right of a riparian owner to continue beneficial use of water to the extent actually made at the time of enactment of the statute, or within 3 years immediately preceding it, or with the use of works then under construction and completed within a reasonable time thereafter. The use of water for domestic purposes as defined in the act is a vested right; but irrigation is not, unless the above requirements as to beneficial use were met.592 (4) In numerous Texas cases, the right of reasonable irrigation was recognized as a proper riparian right under the common law.593 The Texas Supreme Court stated by dictum in 1926 that from the Mexican decree of 1823 down to the passage of the State appropriation act of 1889, the fixed policy of the successive governments of Texas was to recognize the right of the riparian owner for irrigation as well as domestic purposes.594 Thirty-six years later, this court concluded that these observations, so far as they pertain to riparian irrigation rights under Mexican law, were erroneous obiter dicta. It was held that lands in Spanish and Mexican land grants along the lower Rio Grande do not have implied rights to irrigate with the river waters.595 But there was no issue of common law riparian rights in the later case. Water Power Propulsion of mill machinery.-The use of the water power of a stream-the momentum of the streamflow across the riparian land596-is a time-honored riparian use. It was recognized as a riparian right at common law.597 There is no more "ancient or well-established feature of riparian rights" than the right 592S. Dak. Laws 1955, ch. 430, Comp. Laws Ann. § 46-1-9 (1967). Validity of this restriction was sustained by the State supreme court in Belle Fourche In. Dist. v. Smiley, 176 N.W. (2d) 239 (S. Dak. 1970);Knight v. Grimes, 80 S. Dak. 517, 127 N.W. (2d) 708 (1964). Relevant Oklahoma legislation and a recent court case are discussed at notes 494497 supra. S93See, e.g., Bakery. Brown, 55 Tex. 377, 378-380 (1881); Watkins Land Co. v. Clements, 98 Tex. 578, 585-590, 86 S.W. 733 (1905);Martin v.Burr, 111 Tex. 57, 62, 228 S.W. 543 (1921); Board of Water Engineers v. McKnight, 111 Tex. 82, 92, 229 S.W. 301 (\92\); Motlv.Boyd, 116 Tex. 82,107-108, 286 S.W. 458 (1926). S9AMotlv. Boyd, 116 Tex. 82, 99-108, 286 S.W. 458 (1926). 595 Valmont Plantations v. State of Texas, 163 Tex. 381, 355 S.W. (2d) 502 (1962), affirming 346 S.W. (2d) 853 (Tex. Civ. App. 1961). Nevertheless, see chapter 7, at notes 656-659, regarding "equitable" rights recognized in a 1969 Texas Court of Civil Appeals case. 596 Weiss v. Oregon Iron & Steel Co., 13 Oreg. 496, 498-502, 11 Pac. 255 (1886). The fall of the stream as it passes or crosses the riparian land in its natural state-that is, the difference in level between the surface point at which the stream first touches and that at which it leaves the land. Rhodes v. Whitehead, 27 Tex. 304, 309-310, 84 Am. Dec. 631 (1863). S91Bathgate\. Irvine, 126 Cal. 135, 142, 58 Pac. 442 (1899). |