| OCR Text |
Show SOUTH DAKOTA 681 An 1866 territorial statute59 provided for private ownership of what would now be classified as diffused surface waters, and seemed to adopt the "natural flow" theory as a basis for the resolution of disputes among riparian owners on a natural watercourse, although the South Dakota cases later seemed more inclined to the "reason- able use" test.60 In 1907 South Dakota enacted a comprehensive ap- propriation law, which declared that all waters within the State from all sources belonged to the public and were subject to appro- priation for beneficial use.61 A permit system was adopted, and there was a provision for forfeiture of unused rights and for adjudication of all water rights on a stream system. In 1913 the State supreme court held that the statute was unconstitutional on the grounds that it deprived riparian owners and owners of artesian wells of property ("vested rights") without due process of law and that it appropriated private property for a public purpose without just compensation in violation of the provisions of the State constitu- tion.62 Nine years later, in Cook v. Evans,63 the court considered for the first time the effect of the Desert Land Act of 1877 on riparian rights in connection with land in the U.S. public domain.64 Some of the claimants asserted claims as appropriators as well as riparians. Some used water prior to February 28, 1877, the date these lands ceased to be Indian lands and became part of the public domain and therefore open to entry by settlers. The court indicated that no riparian rights could be acquired prior to that date, but that they could attach after February 28, 1877 and before March 3, 1877, when the Desert Land Act became effective (there was no evidence that water had been used in connection with these lands during that short 2-day period). The court was then faced with the question as to whether riparian rights could attach after passage of the Desert Land Act. Relying on a well-known Oregon case,65 the court held that the effect of the act was to sever water from land in the public domain (except for the use of water for domestic purposes) and to dedicate all water on land in the public domain to appropriation for irrigation, mining, and manufacturing purposes. Federal patents after 1877 would not, therefore, carry riparian rights except for domestic purposes. It is interesting to note that the court felt that certain riparian claims could, however, be acquired by prescriptive use but that all such claims would be inferior to appropriation rights, at least if the appropriation rights were perfected prior to the running of the prescriptive period. BeTerr. Dak. Laws 1855-66, Civil Code, sec. 256 (1866). This provision was carried over into the South Dakota statutes where it remained until it was repealed in 1955. 80 See, e.g., Sturr v. Beck, 6 Dak. 71, 50 N.W. 486 (1888) ; Lone Tree Ditch Go. v. Cyclone Ditch Go., 15 S.D. 519, 91 N.W. 352 (1902) ; Redwater Land & Canal Co. v. Hawthorne Ditch Co., 32 S.D. 260, 143 N.W. 124 (1913). °S.D. Laws, 1907, ch. 180. MS*. Germain Irrigating Co. v. Hawthorn Ditch Co., 32 S.D. 466, 143 N.W. 124 (1913). 83 45 S.D. 31, 185 N.W. 262 (1924). See also Haaser v. Engleorecht, 45 S.D. 143, 186 N.W. 572 (1924). M The act provided "* • ? all surplus water over and above such actual appropriation and use, together with the water of all lakes, rivers and other sources of water supply upon the public lands and not navigable, shall remain and oe held free for the appro- priation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights." 19 Stat. 377, ch. 107 (1877). (Italics added.) <* Hough v. Porter, 51 Ore. 318, 95 Pac. 732, 98 Pac. 1083. 102 Pac. 728 (1909). |
