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Show 220 WATER RIGHTS SYSTEMS PERTAINING TO WATERCOURSES The rule invoked by the Oregon Supreme Court, therefore, is quite the opposite of a "legal fiction." Pragmatically speaking, however, in the present considerable irrigation economy of Oregon, the water law aspects of which are predicated predominantly upon the appropriation doctrine, the sum total of these remnants of riparianism is small. South Dakota The Dakota Territorial statute of 1865-66 provided, inter alia, that water running in a definite natural stream over or under the surface might be used by the landowner as long as it remains there, but that he might not prevent the natural flow of the stream nor pursue nor pollute it. This was carried over into the laws of South Dakota as well as North Dakota.283 After being reenacted with some modifications, the section was repealed in 1955 in connection with the complete revision and the reenactment of the water appropriation law.284 The first judicial recognition of the riparian doctrine in the Dakotas was in 1890 in Sturr v. Beck, by both the Territorial supreme court and the United States Supreme Court.285 In 1910, the State supreme court referred to the Territorial act of 1866 as a literal copy of one section of the proposed Civil Code for the State of New York, and that the South Dakota copy should be regarded as merely declaratory of the common law riparian doctrine as understood by the New York code commissioners when their report was prepared.286 In the Lone Tree Ditch case, the South Dakota Supreme Court held that two water rights systems prevailed: One for acquiring the right to use water for irrigation purposes by appropriation; the other, the common law right to the use of water, not so appropriated for irrigation purposes, by the riparian owner.287 The appropriative right accrues as of the date of priority of the right. The riparian right accrues at the time the riparian owner or his predecessor settled on the riparian tract of public land with the intention of perfecting the title which he finally acquired from the Govermment.288 The results, according to 283 Terr. Dak. Laws 1865-1866, ch. 1, § 256, Civil Code § 255 (1877), S. Dak. Laws 1890, ch. 105. 284S. Dak. Laws 1955, ch. 430, § 1, repealing, Code § 61.0101 et seq. (1939). Section 61.0101 of 1939, which contained the riparian declarations, was replaced in 1955 by § 61.0137, now S. Dak. Comp. Laws Ann. § § 46-5-1 to -3 (1967), which recognizes no riparian rights of landowners in streamflow crossing their lands. 28SSturr v. Beck, 6 Dak. 71, 50 N. W. 486 (1888), affirmed, 133 U. S. 541 (1890). 2*6Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, 525-527, 91 N. W. 352 (1902); Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 474, 128 N. W. 702 (1910). 2S1Lone Tree Ditch Co. v. Cyclone Ditch Co., 15 S. Dak. 519, 527-530, 91 N. W. 352 (1902). 288Id. at 521-522; Stenger v. Tharp, 17 S. Dak. 13, 20, 94 N. W. 402 (1903); Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 203-204, 130 N. W. 85 (1911). |