OCR Text |
Show INTERRELATIONSHIPS OF THE DUAL WATER RIGHTS SYSTEMS 221 the decisions, is that on a stream, the waters of which are claimed by both ap- propriators and riparians, the superiority of rights of any appropriator as against any riparian proprietor, or vice versa, depends upon their respective times of ac- crual. And it is the surplus flow of a stream over what might be legally used by riparians and prior appropriators that is subject to appropriation.289 In 1955, the South Dakota Legislature repealed the water approoriation legislation in its entirety and in place thereof substituted two acts-one relating to surface waters and the other to ground waters and wells.290 In enacting the current law relating to appropriation of water of watercourses, the legislature undertook to define and to protect vested rights to the use of water so far as they pertain to beneficial use. Use of water for defined domestic purposes is unqualifiedly declared to be a vested right. The right of a riparian owner, at the time the act was passed, to continue to use water then being used for irrigation or other "artificial" purposes, or recently so used or in preparation therefor, was a vested right.291 But failing such use or immediately prospective use, the riparian right to use water for irrigation or other "artificial" purposes is not recognized. On the contrary, "Subject to vested rights and prior appropriations, all waters flowing in definite streams of the State may be appropriated as herein provided."292 The constitutionality of this 1955 water rights legislation has been sustained by the South Dakota Supreme Court.293 Texas During the 70 years that elapsed from the decision in the first riparian case of Haas v. Choussard in 1856 to that rendered in Motl v. Boyd in 1926, the Texas courts in discussing riparian rights questions were concerned chiefly with the common law and had little to say about the civil law or Spanish-American colonization law.294 In Motl v. Boyd the supreme court broke away from this long trend and dealt at length by dictum with Mexican colonization laws and with laws and 289St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 268, 143 N. W. 124 (1913). 290S. Dak. Laws 1955, chs. 430 and 431, respectively, Comp. Laws Ann. chs. 46-1 to -8 (1967). 291S. Dak. Comp. Laws Ann. § 46-1-9 (1967). 292Id. § 46-5-5. 293 BelleFourcheIrr. Dist. v.. Smiley, 176 N. W. (2d) 239 (S. Dak. 1970); Knight v. Grimes, 80 S. Dak. 517, 127 N. W. (2d) 708 (1964). In the Belle Fourche case, the court said that the "Decision in the Knight case concerned with underground waters is equally applicable to surface waters." 176 N. W. (2d) at 245. 294Haas v. Choussard, 17 Tex. 588 (1856); Motl v. Boyd, 116 Tex. 82, 286 S. W. 458 (1926). An early exception was Tolle v. Correth, 31 Tex. 362, 98 Am. Dec. 540 (military court 1898). |