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Show ESTABLISHMENT OF THE RIPARIAN DOCTRINE IN THE WEST 191 The ancestry of section 255 of the Territorial Civil Code was noted in both of the South Dakota decisions. In Lone Tree Ditch Company v. Cyclone Ditch Company, the court declared the section to be a concise statement of the common law doctrine applicable to the rights of riparian owners. This was said to be apparent from the fact that the section was a literal copy of section 256 of the proposed civil code for the State of New York and that the code commissioners of that State, in a note to that section, cited a large number of English and American decisions in which the doctrine of the common law as applied to riparian owners was discussed. The common law, said the South Dakota court, "seems to have recognized" the right of the riparian owner to use a reasonable amount of water for irrigating purposes. In Redwater Land & Canal Company v. Reed, the supreme court repeated its statement that section 278 of the Revised Civil Code of South Dakota (which was taken from section 255 of the Territorial Civil Code) was the same as the New York section as proposed by the commissioners, and concluded on this point that:143 There is no suggestion in the report of the commissioners of an intention to change the common law respecting riparian rights. Therefore section 278 of our Civil Code should be regarded as merely declaratory of the common law as understood by the commissioners when their report was prepared. The South Dakota provision, after several amendments, was repealed in 1955.144 The North Dakota section was repealed in 1963.145 Oklahoma The Dakota Civil Code section 25 5146 was copied literally by the First Territorial Legislative Assembly of Oklahoma.147 It was continued in the State statutes and remained in force until amended in 1963.148 The Territorial statute of 1890 has been quoted or cited by the Oklahoma Supreme Court in several cases concerning rights of landowners to use water of natural streams flowing over their land.149 In two of them, interpretation of the statute was an important part of the court's decision. Undoubtedly, this early statute was important in such development of the riparian doctrine as has taken place in Oklahoma with respect to rights of use of riparian waters. However, in both early and late decisions, without referring to the statute of 143Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 474, 128 N. W. 702 (1910). 144S. Dak. Code § 61.0101 (1939), repealed by Laws 1955, ch. 430, § 1. 145 N. Dak. Cent. Code Ann. § 47-01-13 (1960), repealed by Laws 1963, ch. 419, § 7. 146 Then Terr. Dak. Comp. Laws § 2771 (1887). 147Terr. Okla. Stat. § 4162 (1890). 148Okla. Stat. Ann. tit. 60, § 60 (Supp. 1961), amended by Laws 1963, ch. 205 § 1, Stat. Ann. tit. 60, § 60 (Supp. 1970). 149Broady v. Furray, 163 Okla. 204, 205, 21 Pac. (2d) 770 (1933); Grand-Hydro v. Grand River Dam Authority, 192 Okla. 693, 695, 139 Pac. (2d) 798 (1943); Smith v. Stanolind Oil & Gas Co., 197 Okla. 499, 501,172 Pac. (2d) 1002 (1946). |