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Show 686 SOUTH DAKOTA entitled to constitutional protection. The case involved the dry draw law, which provides that a landowner may dam any dry draw with a drainage area not in excess of 160 acres as long as downstream domestic uses are not prejudiced. A "dry draw" is "any ravine or watercourse not having an average daily flow of at least 0.4 cubic feet per second * * * during the period May 1st to September 30th, inclusive." 101 Whether the Terry case is still the law in South Dakota is doubtful. The 1955 water code revision eliminated the statutory language relied on by the court and which originated in the terri- torial legislation. It may be that the later statutory emphasis on public ownership of all water, regardless of source, amounts to an abandonment of the concept of private ownership of diffused surface waters.102 South Dakota has different doctrines relating to the disposal of diffused surface waters for rural areas and for urban areas. The "civil law rule" applies to rural areas.103 This rule places an ease- ment or servitude upon the lower landowner for the drainage of surface water in its natural course, and the natural flow cannot be obstructed by the lower landowner to the detriment of the upper landowner.104 A rule of "reasonableness" is applied in urban areas, and each landowner is privileged to make a reasonable use or de- velopment of his land, even though the flow of surface waters is altered to the injury of another, as long as the interference with the flow is not unreasonable.105 4. Ground Water The water appropriation act of 1955 extended public ownership to ground water, including percolating waters, underground streams and artesian basins.106 Diversions and applications of ground water to beneficial use prior to February 28, 1955, are protected as "vested rights." Also, users who were engaged in the construction of works on that date are entitled to complete the construction and apply the water to beneficial use. If this is accomplished within a reasonable time, the right is a vested right. After that date, any person intend- ing to make a diversion of ground water is required to notify the commission. The general procedure for acquiring a permit for the use of water from surface sources is followed in the case of ground water. The statute was upheld in Knight v. Grimes.™1 South Dakota has adopted extensive legislation for the protection of artesian well pressure in the State. The water resources commission has the statutory responsibility to administer artesian basins, and it is also instructed to make tests and investigations so that it can advise the citizens of the State in matters relating to ground waters.108 Wells must be equipped with devices which will enable 101 Sec. 46-1-6(3) ; the Dry Draw Location Works Act is in Sec. 46-4-1 to 46-4-8. 102 See Note, 20 Stan. L. Rev. 1205, 1223 (1968). 103 Young v. Huffman, 77 S.D. 254, 90 N.W. 2d 401 (1958). 104 Johnson v. Metropolitan Life Ins. Go., 71 S.D. 155, 22 N.W. 2d 737 (1946). «*Mulder v. Tague, 186 N.W. 2d 884 (1971). 100 Sees. 46-6-1 to 46-6-23 as amended in 1971. On the protection of artesian pres- sure, see Note, 16 S.D. L. Rev. 481 (1971). 1("80 S.D. 517, 127 N.W. 2d 708 (1964). 10«Sec. 46-3-11. |
