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Show 759 land itself;293 where vested, they could not be affected by the pro- vision of the water appropriation act of 1907 dedicating all waters within the State to the public, nor by the provision for forfeiture of a right when not exercised for three years.294 Various features of the riparian doctrine and its operation in the State were involved in several decisions of the supreme court rendered in 1910 and 1911;295 and a decision in 1932 dealt with the rights of a city resulting from ownership of a tract of riparian land.296 The South Dakota Supreme Court ruled in 1922 that public lands entered after the enactment of the Desert Land Act in 1877 297 were divested of all riparian rights except for domestic purposes,298 but rendered a decision to the contrary in 1940.2" The court stated in this later decision that it had erred previously in holding that Congress, by the Desert Land Act, had intended to set up "appropriation" as the governing rule under which rights in surplus water on the public domain were to be acquired; that inasmuch as the South Dakota de- cisions rendered prior to 1922 had held that riparian rights could be acquired by means of settlement on riparian land and appropriative rights by proceeding under the statute, the rights of a riparian owner must be determined by the law thus established. Ground waters flowing in well-defined and known channels, the course of which can be distinctly traced, are governed by the same rules of law that govern streams flowing upon the surface; but in order that the riparian owner or appropriator may invoke these rules, the flows must constitute regular and constant streams, otherwise the presumption will be that they have their sources in ordinary percolations through the soil.300 Ground waters not forming a definite stream were declared by the early Territorial law to belong to the owner of overlying land, without qualification.301 This law of unqualified ownership, carried over into ^Stenger v. Tharp, 17 S. Dak. 13, 23-24, 94 N. W. 402 (1903). 894 St. Germain Irrigation Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 266-267, 268, 143 N. W. 124 (1913). The statute referred to is S. Dak. Laws 1907, ch. 180, which with various amendments is a part of the extant code: S. Dak. Code 1939, Title 61, ch. 61.01. ** Lone Tree Ditch Co. v. Cyclone Ditch Co., 26 S. Dak. 307, 310-313, 128 N. W. 596 (1910); Redwater Land & Canal Co. v. Reed, 26 S. Dak. 466, 475-477, 481, 487-488, 489-490, 128 N. W. 702 (1910); Redwater Land & Canal Co. v. Jones, 27 S. Dak. 194, 202-204, 205-206, 130 N. W. 85 (1911). **Sayles v. Mitchell, 60 S. Dak. 592, 594-595, 245 N. W. 390 (1932). seT 19 Stat. L. 377 (March 3, 1877). SM Cook v. Evans, 45 S. Dak. 31, 40, 185 N. W. 262 (1921), 45 S. Dak. 43, 186 N. W. 571 (1922). See also Haaser v. Englebrecht, 45 S. Dak. 143, 146- 147, 186 N. W. 572 (1922). 389 Platt v. Rapid City, 67 S. Dak. 245, 248-250, 291 N. W. 600 (1940). mDeadwood Central R. R. v. Barker, 14 S. Dak. 558, 565-566, 86 N. W. 619 (1901). 801 Terr. Dak. Civ. Code, § 255. |
