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Show SOME GENERAL PROCEDURAL MATTERS IN WATER RIGHTS LITIGATION 497 copy of the decree is filed with the State Engineer, stating the amount, purpose, priority and place of use of the right and, if the water is for irrigation, the tracts of land to which the water right shall be appurtenant, and such other conditions necessary to define the right and its priority.325 Another statutory adjudication provision.-In addition to the foregoing statutory provisions, which closely follow the Bien Code, as noted above, the State Water Conservation Commission is authorized (a) to prosecute suits to adjudicate all water rights upon any watercourse or source of water supply from which waters are derived for reservoirs and other distribution works; and (b) to join in any action all owners of vested water rights in order to adjudicate "all surplus water upon all of the watercourses and sources, water supplies or any project constructed under the supervision and control of the commis- sion ** *."326 SOME GENERAL PROCEDURAL MATTERS IN WATER RIGHTS LITIGATION Following are some general procedural matters in water rights litigation. These include matters pertaining to ordinary civil actions or special statutory adjudication procedures, or both. Certain aspects of such procedural matters have been referred to at various places in the preceding discussion of statutory adjudication procedures. only for the payment of the expenses of the surveys ordered by the court under § 61-03-17. The monies paid under § 61-03-17 by the parties to these suits, on account of such surveys, are credited to this fund. The South Dakota Supreme Court declared void a South Dakota provision similar to § 61-03-17 for assessing costs against private parties. It noted that the cost of a hydro- graphic survey might be considerable and held that to require a riparian proprietor or appropriator who makes proper use of the stream water to pay any part of the cost. without his consent, would deprive him of property without due process of law. St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 269, 143 N.W. 124 (1913). The North Dakota Supreme Court apparently has not dealt with this question. The South Dakota adjudication statutes now provide that no part of the State or hydrographic costs may be charged against the private parties without their consent expressly stipulated. S. Dak. Comp. Laws Ann. § 46-104 (1967). 325 N. Dak. Cent. Code Ann. § 61-03-19 (1960). ilbId. § 61-02-23. Another statute provides that every State agency and officer authorized to take any action concerning the use or disposition of waters or water rights within the State is required to submit any plans, purposes, and contemplated action with respect to the use or disposition of such waters, or water rights, to the State Water Conservation Commission and shall receive the consent and approval of the Commision "before making any agreement, contract, purchase, sale, or lease to carry into execution any works or projects authorized under the provisions of this chapter." Id. § 61-02-26. |
