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Show 562 DIFFUSED SURFACE WATERS asserted a constitutional right of the landowner to diffused surface water of which the court indicated he could not be deprived by this dry draw law. However, the language of section 348 was deleted in 1955.119 A new statutory provision declares that "all water within the state is the property of the people of the state, but the right to the use of water may be acquired in the manner provided by law."120 (Emphasis supplied.) One writer has suggested that the vitality of the Benson and Terry cases may be impaired by the deletion of the language of old section 348 and the enactment of this new provision.121 Texas The Texas statutes provide that "storm water, floodwater, and rainwater of every river, natural stream, canyon, ravine, depression and watershed in the state is the property of the state" and is subject to appropriation.122 The Texas Supreme Court has held that owners of land granted prior to the enactment of this statute have the right to rainwater falling on their lands. The court stated that under both the common law and the Mexican civil law, owners of land on which rains may fall and surface waters gather are proprietors of the water so long as it remains on their land, and prior to its passage into a natural watercourse to which riparian rights may attach. This right is a property right vested in the owner when the grant was made. Hence the legislature has no power to take it from the owner and declare it public property and subject to appropriation or otherwise to the use of another. If the statutory article were to be so construed as to make diffused surface water public water and subject to appropriation, it would be clearly unconstitutional. "Whether or not the Article in this respect could be applied under our constitution to grants made a location notice. Id. See § § 46-4-7 and 46-4-8 regarding location certificates. "Dry draw" is defined in § 46-1-6(3) as "any ravine or watercourse" not having an average daily flow of at least 0.4 cf.s. from May 1 to Sept. 30, exluding any natural or publicly owned lake. Previous versions of this statutory provision are discussed in the Benson and Terry cases. 119 S. Dak. Laws. 1955, ch. 430 § 1. 120S. Dak. Comp. Laws Ann. § 46-1-3 (1967). For another State with a more or less similar provision, see "Utah," infra. 121 Note, 'The Ownership of Diffused Surface Waters in the West," 20 Stan. L. Rev. 1205, 1223(1968). Another statutory provision, S. Dak. Comp. Laws Ann. § 46-5-5 (1967), in part provides that "Subject to vested rights and prior appropriations, all waters flowing in definite streams of the state may be appropriated as herein provided." Another section, § 46-5-10, states that "Any person, association, or corporation, public or private, intending to acquire the right to the beneficial use of any surface waters shall, before commencing any construction for such purpose or before taking the same from any constructed works, make an application to the water resources commission for a permit to appropriate, in the form required by the rules and regulations established by it." Neither of these statutory provisions were dealt with in the Benson and Terry cases and § 46-5-10 was not mentioned in Note, 20 Stan. L. Rev., supra. 122Tex. Rev. Civ. Stat. Ann. art. 7467 (Supp. 1970). |