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Show RIGHTS OF LANDOWNERS IN DIFFUSED SURFACE WATERS 561 It is clear from the evidence that defendant's dam was built in a natural basin to collect and contain surface water primarily from his own watershed and, to a lesser degree, from the property adjoining to the north. This the defendant had a right to do even though it prevented such surface water from flowing through the drainway and onto the land of the plaintiff. * * * [A] lower land owner has no riparian right to the surface water of another. In a syllabus, the court stated:lls Under 60 O.S. 1965 Supp., § 60, an owner of land owns the surface water flowing across his land but not forming a definite stream, and he has the right to collect and appropriate it to his own use without liability to others. Riparian rights do not attach to such surface waters, and a lower proprietor has no right to have surface water flow to his land from higher land. South Dakota The South Dakota Supreme Court declared in Benson v. Cook that it is the settled rule that the landowner has the absolute right to diffused surface water found on his land, and that he may retain such water for his own use and prevent it from flowing upon the land of another.116 Some years later this declaration-with some additions-was repeated in Terry v. Heppner:111 No riparian rights attach to surface waters, nor does the arid region theory of appropriation apply thereto. There is no right on the part of a lower proprietor to have surface water flow to his land from upper property. A landowner is entitled to use surface water as he pleases so long (and so long only) as it continues in fact to come upon his premises. He may drain or divert the same or he may . capture, impound, and use it in such fashion as he will, provided only that he does not thereby create a nuisance or unlawfully dam back or cast the waters upon the land of another. The Benson case relied upon section 348 of the 1919 South Dakota Code which provided in part that "The owner of the land owns the water standing thereon, or flowing over or under the surface, but not forming a definite stream." The Benson case was the sole authority relied.upon in the Terry case regarding a landowner's right to use diffused surface waters. Another provision of the South Dakota statutes provides that an owner or occupant of agricultural land may for any purpose dam any dry draw with a drainage area not in excess of 160 acreas, provided irrigation therefrom does not interfere with domestic uses of water downstream.118 But the court in the Terry case llsId. at 572. 116Benson v. Cook, 47 S. Dak. 611, 616-617, 201 N.W. 526 (1924). 117Terry v. Heppner, 59 S. Dak. 317, 318-319, 239 N.W. 759 (1931). 118 S. Dak. Comp. Laws Ann. § 46-4-1 (1967). Such impoundment of waters in a dry draw may be done without a permit from the Water Resources Commission except for filing |