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Show ESTABLISHMENT OF THE RIPARIAN DOCTRINE IN THE WEST 195 rights, difficulty of apportionment of water among riparians, disapproval of simultaneous claiming of both appropriative and riparian rights by a riparian landowner, and interpretation of the Congressional Desert Land Act of 1877166 as abrogating the common law rule in respect to riparian rights for irrigation and other artificial purposes on all public lands entered there- after.167 The State water code of 1909 limited vested riparian rights to the extent of actual application of water to beneficial use prior to its enactment, or within a reasonable time thereafter by means of works then under construction, all such rights to be adjudicated under the statutory procedure provided therein.168 This legislation was sustained by both the Oregon Supreme Court and the United States Court of Appeals, 9th Circuit.169 The result of this harmonized legislative and judicial modification of the common law riparian doctrine in Oregon has been to substantially reduce that doctrine. So far as rights to the use of water for beneficial purposes are concerned, and except for certain vested rights chiefly for domestic and stockwatering purposes,170 very little vestige of the doctrine remains as against appropriative rights under the water code, although it may apply in situations not controlled by the water code.171 South Dakota. -Riparian rights have been recognized in a number of South Dakota court decisions. They are held to be incident to and part of the riparian land itself, and unaffected by a statutory dedication to the public of all water within the State. However, the South Dakota water appropriation act was completely rewritten in 1955, one of the chief purposes being to eliminate so far as possible the obstructive aspects of the common law riparian doctrine. To that end, the precedent set by the Oregon Legislature was followed in including under the definition of "Vested Rights" the right of a riparian owner to continue the use of water actually applied to any beneficial purpose at the time of the enactment, or within the immediately preceding 3 years, or with the use of works under construction at the time of the enactment provided the works are completed and water actually applied to beneficial use within a reasonable time thereafter. But use of water for domestic purposes is unqualifiedly declared a vested right.172 16619 Stat. 377, 43 U. S. C. § 321 (1964). 161 Hough v. Porter, 51 Oreg. 318, 383-399, 404-406, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). 168Oreg. Laws 1909, ch. 216, Rev. Stat. § 539.010 (Supp. 1955). 169In re Willow Creek, 74 Oreg. 592, 610-620, 625-628, 144 Pac. 505 (1914), 146 Pac. 475 (1915); California-Oregon Power Co. v. Beaver Portland Cement Co., 73 Fed. (2d) 555, 562-569 (9th Cir. 1934). 170Hutchins, Wells A., supra note 165, at 218-219, which includes a discussion of questions regarding these domestic and stockwatering purposes. inFitzstephens v. Watson, 218 Oreg. 185, 344 Pac. (2d) 221 (1959). 172 S. Dak. Laws 1955, Ch. 430, Comp. Laws Ann. § 46-1-9 (1967). |