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Show 190 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES statutes137 has the legislature specifically declared or recognized irrigation as a lawful riparian use of water. Territory of Dakota A Territorial statute enacted in 1866 read as follows:138 The owner of the land owns water standing thereon, or flowing over or under its surface, but not forming a definite stream. Water running in a definite stream, formed by nature over or under the surface, may be used by him as long as it remains there; but he may not prevent the natural flow of the stream, or of the natural spring from which it commences its definite course, nor pursue, nor pollute the same. Toward the end of the Territorial regime, the supreme court held that on the filing of a homestead entry for which a patent was subsequently issued, rights in the stream flowing over the land vested in the entryman.139 In affirming this judgment, the United States Supreme Court approved the principle that a proprietor of land bordering upon a running stream is entitled to the benefit to be derived from the flow of its waters as a natural incident to his estate; that when the Government ceases to be the sole proprietor, the right of the riparian owner attaches and cannot be subsequently invaded.140 "As the riparian owner has the right to have the water flow ut currere solebat, undimin- ished except by reasonable consumption of upper proprietors, and no subse- quent attempt to take the water only can override the prior appropriation of both land and water, it would seem reasonable that lawful riparian occupancy with intent to appropriate the land should have the same effect." The Court quoted with approval the Dakota Civil Code section 255 cited immediately above. North Dakota and South Dakota.-The Territorial Civil Code section 255 was carried over into the laws of both North Dakota and South Dakota on their cre- ation in 1889.141 It was cited as current authority by the supreme courts of both States in decisions in which riparian rights were involved or considered.142 137Tex. Laws 1889, ch. 88; Laws 1895, ch. 21; Laws 1913, ch. 171; Laws 1917, ch. 88. 138terr. Dak. Laws 1865-1866, ch. 1, § 256, Civ. Code § 255 (1877). 139 Stun v.Beck, 6 Dak. 71, 50 N. W. 486 (1888). 140Stun v. Beck, 133 U. S. 541, 547, 551 (1890). 141 The Enabling Act provided that all Territorial laws in force at the time of admission of the States to the Union "shall be in force in said States, except as modified or changed by this act or by the constitutions of the States, respectively." 25 Stat. 676, § 24. See also N. Dak. Const, Schedule, § 2. For subsequent history in the two States, see: (1) North Dakota: N. Dak. Rev. Codes § 3362 (1895); Rev. Code § 4798 (1905); Comp. Laws § 5341 (1913); Rev. Code § 47-0113 (1943); Cent. Code Ann. § 47-01-13 (1960), repealed, Laws 1963, ch. 419, § 7. (2) South Dakota: S. Dak. Rev. Codes, C. C. § 278 (1903); Rev. Code § 348 (1919); Comp. Laws § 348 (1929); Code § 61.0101 (1939), repealed, Laws 1955, ch. 430, § 1. 142See McDonough v. Russell-Miller Mill. Co., 38 N. Dak. 465, 471-472, 165 N. W. 504 (1917); Johnson v. Armour & Co., 69 N. Dak. 769, 776-777, 291 N. W. 113 (1940); Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, 525-527, 91 N. W. 352 (l902);Redwater Land & Canal Co. v.Reed, 26 S. Dak. 466, 474, 128 N. W. 702 (1910). |
