OCR Text |
Show 620 OTHER WATERS AT THE SURFACE unimportant whether the diversion is from a natural watercourse, or a spring, or a well formed by percolation. Whatever doubt may exist elsewhere upon the question, it would seem that the right to make such an appropriation of waste, spring, or seepage water finds recognition in the legislation of this state."289 The foregoing decision was distinguished in a later decision of the Oregon court as obviously dealing only with claims of water rights on the public domain, and not relating to a spring on land in which the title in fee simple is in private ownership.290 The grantee of public land takes title subject to any vested and accrued water rights to which the tract in question has been subjected, including rights to use springs rising on such lands and contributing to the water supply of a watercourse.291 South Dakota In 1955, the South Dakota Legislature repealed important sections of its water rights law, substituting, in most instances, new provisions for surface and ground waters.292 The validity of these 1955 statutes was sustained by the South Dakota Supreme Court.293 The general State policy in the 1955 statutes provided, among other things: "[A] 11 water within the state is the property of the people of the state, but the right to the use of water may be acquired by appropriation in the manner provided by law."294 " [T] he people of the state have a paramount interest in the use of all the water of the state and * * * the state shall determine what water of the state, surface and underground, can be converted to public use or controlled for public protection."295 289Brosnan v. Harris, 39 Oreg. 148, 151, 65 Pac. 867 (1901). The court thereupon referred to the act of 1893 [now Oreg. Rev. Stat. § 537.800 (Supp. 1969)] concerning priorities as among ditches constructed to utilize waste, spring, or seepage waters, but did not quote the landowner preference. 290Henrici v. Paulson, 134 Oreg. 222, 226, 293 Pac. 424 (1930). Plaintiffs had relied on the opinion in Brosman v. Harris, 39 Oreg. 148, 65 Pac. 867 (1901), but the supreme court reminded them that that case was a suit to restrain the diversion and interference with water of a certain spring located upon unoccupied public land of the United States. 291 Hildebrandt v. Montgomery, 113 Oreg. 687, 692-693, 234 Pac. 267 (1925). 292S. Dak. Laws 1955, chs. 430 and 431, Comp. Laws Ann. chs. 46-1 to 46-8 (1967). 293Belle 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). For some early decisions of the South Dakota Supreme Court relating to spring waters, see Metcalf v. Nelson, 8 S. Dak. 87, 65 N.W. 911 (1895); Farwell v. Sturgis Water Co., 10 S. Dak. 421, 73 N.W. 916 (1898); Madison v. Rapid City, 61 S. Dak. 83, 246 N.W. 283 (1932). 294 S. Dak. Comp. Laws Ann. § 46-1-3 (1967). 295Id. § 46-1-1. |