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Show SOUTH DAKOTA 685 longing to the owner, or upon which the owner has secured an ap- propriate easement, is flooded.91 Any person who believes that a dam or other waterworks is un- safe may request that the water resources commission inspect those works, but he must pay the estimated cost of the inspection. If the dam is found to be unsafe, the person requesting the inspection will have his money refunded, and the owner of the works will have to pay those costs.92 If the commission finds that the works are unsafe and a menace to life and property, it is to notify the owner as to what repairs and changes will be required and allow him up to 3 months to correct the situation.93 3.6 Springs Spring waters in South Dakota are covered by the appropriation laws of the State and a landowner may appropriate water from springs through the permit system.94 However, the statutes ex- pressly provide that the owner of lands upon which a spring arises and then flows into and constitutes a part of the water supply of a natural stream, may not prevent the flow or pollute the waters by virtue of his riparian ownership.96 The court has held that the con- struction of a trench which intercepts the flow of subterranean waters supplying a natural spring, which in turn contributes to a definite stream, is enjoinable.96 Prior to the adoption of the permit system in South Dakota the court seems to have held that the landowner's right in percolating waters gathered into a spring was for practical purposes, equivalent to ownership, and the landowner had the exclusive right to use and dispose of such waters.97 This earlier view has now been modified by the appropriation system, and is subject to the conditions and limitations discussed above. 3.7 Diffused Surface Waters The territorial act of 186698 provided that the owner of the land owns "water standing thereon, or flowing over or under its surface, but not forming a definite stream." This provision was carried over into subsequent State statutes, which were relied upon in Benson v. Cook" where the court held that an upper landowner could retain diffused surface waters on his land where a "definite stream" had not formed. Perhaps the most extreme assertion of ownership of diffused sur- face waters came in 1931 in the case of Terry v. Heppner,100 in which these waters were described as "appurtenant to and insepara- ble from" ownership of the land, and a "vested right" which was 91 Sec. 46-5-2. 98 Sec. 46-7-6. 83 Sec. 46-7-9. MSee. 46-5-3. 96 Sec. 46-5-1. *> Madison v. Rapid City, 61 S.D. 83, 246 N.W. 283 (1932). 97 Metoalf v. Nelson, 8 S.D. 87, 65 N.W. 911 (1895). 98 Terr. Dak. Laws 1855-1866, Civil Code sec. 256 (1866). 89 47 S.D. 611, 201 N.W. 526 (1924). «°59 S.D. 317, 239 N.W. 759 (1931). |