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Show 584 NORTH DAKOTA are rather complicated, and are treated at some length in the follow- ing section which discusses the basic problems and legal considera- tions which must be taken into account in evaluating water right claims. 3.2 Nature and Limit of Rights The nature and limit of water rights in North Dakota are rooted in history, and some of that history must be reviewed in order to under- stand the present situation. The territorial legislature in 186639 adopted what appeared to be the absolute ownership rule as to sub- terranean percolating water and diffused surface water. The riparian rights theory was affirmed as to water flowing in a definite stream40 on the surface of the land. The territorial statute was continued in the North Dakota water code 41 until it was finally repealed in 1963.42 As early as 1890, the Supreme Court of the United States recog- nized North Dakota's adoption of the riparian system and went so far as to affirm the then prevalent notion that unused riparian rights were entitled to legal and perhaps constitutional protection.43 The riparian right was regarded, however, as merely a usufructuary right as distinguished from absolute ownership.4* Early North Dakota cases considered riparian rights to be entitled to constitutional pro- tection, including uses for manufacturing and irrigation as well as domestic uses, governed by the rule of reasonable use.45 It seems clear, therefore, that both before and after statehood (1889) riparian rights existed. In 1905, the North Dakota Legislature adopted an irrigation code which provided that all waters within the State, regardless of the source of supply, belonged to the public and were subject to appro- priation for beneficial use; that prior appropriation gives a better right to the use of water; and that the use of water for a beneficial use is a public purpose for the exercise of the power of eminent domain. The administrative machinery necessary to supervise the system was also established. This basic water law was amended in 1955 and 195T.46 It is unusual that there were no judicial decisions challenging the validity of the 1905 act, but this might have been fortunate, for the South Dakota court in an early case held a similar law unconstitutional as it purported to adversely affect prior riparian rights.47 It seems incongruous that the early act of 186648 which spoke in terms of absolute ownership of ground water and diffused surface »>Terr. Dak. Laws, 1855-1866, Civ. Code, sec. 255 (1866). *° This has generally been regarded as eaulvalent to the common law meaning of a "watercourse." The latter term is defined in sec. 61-01-06. «Sec. 47-01-13. *2 N.D. Laws, 1963, ch. 419, sec. 7, or see 1971 supplement to the Century Code. ^Sturr v. Beolc, 133 U.S. 541 (1890). u An 1881 statute of the territorial legislature to this effect was carried over into North Dakota Const., art. 17, sec. 210 (1889) which provides: "All flowing streams and natural water courses shall forever remain the property of the state for mining, irri- gating and manufacturing purposes." 45 See Bigelow v. Draper, 6 N.D. 152, 69 N.W. 570 (1896) : Brignall v. Hannah, 34 N.D. 174. 157 N.W. 1042 (1916) ; McDonough v. Russell-Miller Milling Co., 38 N.D. 465, 165 N.W. 504 (1917) ; Henderson v. Hines, 48 N.D. 152, 183 N.W. 531 (1922) ; Johnson v. Armour & Co., 69 N.D. 769, 291 N.W. 113 (1940). 48 N.D. Laws, 1905, ch. 34. The present version will be found in title 61 of the Code. *7 St. Germain Irrigating Go. v. Hawthorn Ditch Go., 32 S.D. 466, 143 N.W. 124 (1913) invalidating S.D. Laws, 1907, Ch. 180 as to preexisting riparian rights. iS See note 39. |
