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Show PERCOLATING WATERS 649 3, 1955.14S Anyone wishing to initiate or enlarge a ground water right after the effective date of the act is required to apply to the State Engineer for a permit and to receive a permit before withdrawing or using water.146 The permit is merely an endorsement on the application which is returned to the applicant.147 The priority date is the date on which the application is filed.148 South Dakota When South Dakota was admitted to statehood, it retained a territorial law declaring the landowner to also own percolating waters found therein.149 Ownership of percolating waters and their distinction from waters in subterranean streams were recognized early in both statute law and common law in South Dakota.150 The court has long recognized that this is more in the nature of a right to use than absolute ownership.151 This "ownership" statute, which had undergone a number of amendments, was finally repealed in 1955.152 In lieu of private ownership of percolating ground waters, South Dakota currently provides for public regulation of ground water through a system of prior appropriation.153 Under this system, any person claiming a vested right based upon prior use of the water shall file with the Water Resources Commission of South Dakota a claim of his rights.154 Those wishing to initiate appropriations of ground water after the act became effective must follow the procedures for appropriating surface water.155 The Code requires filing an application156 and publication of notice of such filing.157 Applications are approved only if there is sufficient water to satisfy them.158 Priority ordinarily is based on the date of filing.159 The constitutionality of this act as applied to percolating waters was challenged on the theory of taking rights vested by the ownership statute without compensation.160 The court held that the statute actually granted a l4SId. § 537.605(1). 146/tf. § 537.615. I47/rf. § 537.625(1). t4*Id. § 537.625(2). 149Terr. Dak. Civ. Code § 255 (1877). ls0Metcalfv. Nelson, 8 S. Dak. 87, 65 N.W. 911 (1895). 15165 N.W. at 912; Deadwood Cent. R.R. v. Barker, 14 S. Dak. 558, 86 N.W. 619, 621 (1901). 152S. Dak. Laws 1955, ch. 430. 1S3S. Dak. Comp. Laws Ann. § 46-6-1 et seq. (1967). 154Id. § 46-6-2. 15SId. § 46-6-3. 156Id. § § 46-5-10 to 46-5-13. 157/rf. §§ 46-5-17 and 46-5-19. 158Id. §§ 46-5-18 and 46-5-22. 1S9Id. § 46-5-16. 160Knight v. Grimes, 80 S. Dak. 517,127 N.W. (2d) 708 (1964). |
