OCR Text |
Show DIVERSION, DISTRIBUTION, AND STORAGE WORKS 591 appropriating water in South Dakota, the statute takes cognizance of the overhead sprinkler system of irrigation by providing that:5 Each application and permit for irrigation by the overhead sprinkler method, or by the use of portable diversion pumping equipment, may divert from one or more points at a time from a reach of the stream or other watercourse between two fixed points on the stream described in the application and permit provided that the total amount diverted from two or more permissible points under the provisions of a water right at one time shall not exceed the total withdrawal rate allowed by said water right per unit of time. Artificial diversion works usually necessary. -As noted below, use of water of natural sources without the aid of artificial devices has been held sufficient under certain circumstances to support the acquisition of appropriative rights. However, in the water use economy of the West, control of the water by taking it from the source of supply and conveying it to the place of intended use in artificial works is necessary in most cases in exercising an appropriative right. Generally, from early times in the West, it was recognized that there must be some adequate means of diverting the water from the natural supply.6 Said the Utah Supreme Court in 1960: "In appropriating water it is necessary * * * [among other requirements] to have a diversion from the natural channel by means of a ditch, canal or other structure, * * *."7 Mode of diversion not material-But it is the fact of diversion, not the mode, that is material. Only such acts are necessary as are practicable to accomplish the purpose of making beneficial use of the water.8 As stated by a Federal court in 1904, "It is immaterial, in acquiring the right, whether the water was taken from the river by means of a canal, ditch, flume, or pipe, or by 5S. Dak. Comp. Laws Ann. § 46-5-13 (1967). 6Simons v. Inyo Cerro Gordo Min. & Power Co., 48 Cal. App. 524, 537, 192 Pac. 144 (1920). "It seems the settled law" in the irrigation States that in the acquisition of a vested right to the use of water from public streams, there must be construction of ditches or conduits, through which to divert water and conduct it to the place of use, followed by actual application of the water to beneficial use: Gates v. Settlers' Mill, Canal & Res. Co., 19 Okla. 83, 89, 91 Pac. 856 (1907). To perfect an appropriation "there must be the physical works by which the water is diverted and carried directly to the land for beneficial use thereon, or carried to storage reservoirs where it is stored temporarily, and then carried to land for beneficial use thereon."Murphy v. Ken, 296 Fed. 536, 542 (D. N. Mex. 1923). "It appears from the record that, in the irrigation of arid lands, waste ditches for the disposition of the surplus water are as necessary as the irrigation itself." Brand v. Lienkaemper, 72 Wash. 547, 549,130 Pac. 1147 (1913). ''Crawford v. Lehilrr. Co., 10 Utah (2d) 165, 168, 350 Pac. (2d) 147 (1960). *Simons v. Inyo Cerro Gordo Min. & Power Co., 48 Cal. App. 524, 537, 192 Pac. 144 (1920). "It is well settled that in the appropriation of water any means adopted to convey it to the place of use is legitimate for the purpose of the appropriation." Turvey v. Kincaid, 111 Oreg. 237, 241, 226 Pac. 219 (1924). |