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Show SOUTH DAKOTA 683 uses); (3) water rights in the process of being perfected by riparian owners on the date of the act, provided the construction of water- works is completed and the water actually applied for the particular use within a reasonable time; (4) rights granted prior to July 1,1955, by court decree; and (5) water rights acquired prior to the 1907 act which have not been subsequently abandoned or forfeited. The constitutional implications of extinguishing "unused" water rights came before the court in 1964 in Knight y. Grimes.™ Al- though the case involved a prior right to percolating waters only, the court sustained the 1955 act insofar as it dedicated all waters of the State to the public. The theory of the decision was, therefore, broad enough to include riparian rights on surface streams. The court admitted that "beyond doubt there has been an invasion of a pre-existing right or interest," but then proceeded to justify this invasion on the ground that South Dakota had never actually recog- nized absolute ownership of percolating water but instead merely a right of use;76 and that, in any event, the act was a proper exercise of the State's police power to protect and conserve unused water resources. A similar but more direct approach would have been to declare that, however ground water may be categorized, there is no such thing as a "vested right" to nonuse of a resource as important to the State as water, as other courts have done.77 In the 9-year period after enactment of the 1955 appropriation law, permits were issued and "vested rights" established for 209,922 acres of land. It is not likely that many riparian rights were in- volved. The act seems to have greatly stimulated the agricultural economy of the State.78 The 1955 act was again sustained by the South Dakota Supreme Court in 1970 79 when the court held that whenever an application is filed for a permit for use of unappropriated waters, the water resources commission is required to make a determination of the existence of vested water rights preserved by the statute. The case was remanded to the trial court to take evidence of the extent of any riparian claims based upon actual use of the water during the 3-year period prior to the effective date of the act. Beneficial use is expressly made the basis, the measure, and the limit of the right to use water,80 and section 46-1-5 of the water code recognizes use of water for domestic purposes (not including municipal) as the highest use of water because it "takes precedence over all appropriative rights." Whether this preference is merely a consideration in determining priority among competing applicants for a permit or whether it is a "true preference" is not known. The same section also authorizes municipalities and other governmental entities to acquire water rights for future as well as existing needs, 7S80 S.D. 517, 127 N.W. 2d 708 (1964). 78 For a criticism of the court's interpretation of earlier ground water cases, see Comment, 11 S.D. L. Rev. 374, 380 (1966). 77 See, e.g., Texas Water Rights Comm'n v. Wright, 464 S.W. 2d 642 (Texas Sup. Ct. 1971). 78 See J. Munro, South Dakota and the Water Impasse, 11 S.D. L, Rev. 254, 273 (1966) for the statement in the text as well as for an excellent diicussion of the history of South Dakota water law up to the Knight case. 79 Belle Fourche Irrigation Dist. v. Smiley, 84 S.D. 701, 176 N.W. 2d 1M9 (1970). so Sec. 46-1-8. |