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Show 288 LOSS OF WATER RIGHTS IN WATERCOURSES supplies, determined future developments, municipal supplies, and waters not subject to appropriation are expressly exempted from these provisions.185 This legislation has not been construed by the Washington Supreme Court. (4) South Dakota. The South Dakota Supreme Court held in 1913 that the forfeiture provision then in force186 (included in an early water administration act being considered by the court)-which provided that "when the party entitled to the use of water" failed to beneficially use all or any portion of the waters that he claimed for a period of 3 years, such unused waters reverted to the public-was "void as to a riparian owner but valid as to one who is no more than an appropriator without riparian right. A riparian right to use such waters of a flowing stream cannot be lost by disuse."187 In Belle Fourche Irrigation District v. Smiley (upholding the validity of the 1955 reenactment of the State's water rights law which, among other things, undertook to eliminate both unused riparian rights existing at the time of enactment and the future acquisition of riparian rights as against appropriative rights)188 the South Dakota Supreme Court noted generally that in the 1913 case, "The act there considered contained no provisions comparable to existing statutory provisions defining, determining and protecting vested rights * * *."189 In this 1955 legislation, the legislature had also reenacted the forfeiture provision, not considered in the Belle Fourche case, to provide that when any person entitled to appropriate water fails to beneficially use the water, in whole or in part, for the purpose of which it was appropriated, for 3 years, such unused appropriated water shall revert to the public and be regarded as unappropriated public water.190 Thus the present forfeiture statute of South Dakota pertains specifically to appropriative rights and it mentions no other kind of water right. Riparian rights, therefore, are not subject to it. three statutes are noted in the subtopics "Rights in Watercourses Subject to Abandon- ment" and "Some Statutory Provisions" under "Abandonment," supra. 185 Wash. Rev. Code §90.14.140 (Supp. 1970). 186 S. Dak. Laws 1907, ch. 180, §46. lzlSt. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 268, 143 N.W. 124(1913). 188 The legislature defined and protected as "vested rights" the common law riparian rights to the continued use of water to the extent of actual application thereof to beneficial use at the time of enactment, or within 3 years immediately prior thereto, or within a reasonable time thereafter for works then under construction. Thereafter, all surplus unappropriated flowing waters were subject to appropriation under the statute. S. Dak. Laws 1955, ch. 430, Comp. Laws Ann. §46-1-9 (1967). This legislation includes the additional qualifications that vested rights include rights granted before July 1, 1955, by court decree, as well as uses under diversions and applications of water prior to the 1907 water law and not subsequently abandoned or forfeited. Domestic uses, appar- ently both used and unused, are included in the definition of "vested rights" and are exempt from the appropriation permit requirements." 189Belle Fourche In. Dist. v. Smiley, 176 N.W. (2d) 239, 244 (S. Dak. 1970). 190S. Dak. Comp. Laws Ann. §46-5-37 (1967). |
