OCR Text |
Show 760 the statutes of South Dakota, was cited by the State supreme court as authority for the principle that subterranean percolating water in South Dakota is a part of the realty.302 The court stated in 1932 that in view of the rule announced in previous decisions (cited in footnote 302), which had been based upon the statute, "there can be no serious con- tention but that the owner of the soil is the absolute owner of per- colating subterranean water." 303 The right to install artesian wells on one's own land, within certain limitations, is accorded by statute.304 An act providing for the regulation of the use of artesian waters and taxation of artesian wells, and imposing certain duties upon the State Engineer with respect thereto, was passed in 1919 and extensively re- vised in 1939, the sections relating to taxation having been repealed in 1941.305 According to the supreme court, this law of 1919 did not change the statutory and judicial rule of ownership of percolating water by the owner of the overlying land; it "attempts to do nothing more than establish rules and regulations concerning artesian wells," leaving in effect the previous legislation (relating to unqualified ownership of ground water not forming a definite stream) except as to artesian water.306 As a result, the rule of absolute ownership of percolating waters still prevails; but artesian wells are subjected by statute to reason- able use, primarily to prevent waste of the water.307 Participation of the State Engineer in adjudications of water rights was made largely inoperative as the result of a supreme court decision in 1913 to the effect that a riparian proprietor or appropriator exer- cising a lawful right could not be required, without his consent, to bear any portion of the expense of a hydrographic survey in connec- tion with a statutory adjudication.308 Amendments made in connec- tion with the 1939 codification provide that when an action for the determination of water rights has been begun, the court shall request ^Metcalf v. Nelson, 8 S. Dak. 87, 89, 65 N. W. 911 (1895); Deadwood Central R. R. v. Barker, 14 S. Dak. 558, 565, 570-571, 86 N. W. 619 (1901). 803Madison v.Rapid City,6l S. Dak. 83, 87, 246 N. W. 283 (1932). 304 S. Dak. Code 1939, § 61.0401 to 61.0406. 803 S. Dak. Laws 191, ch. 100; Code 1939, §§ 61.0407 to 61.0415. S. Dak. Laws 1941, ch. 369, repealed §§ 61.0408, 61.0409, 61.0410, 61.0411, 61.0412, and 61.0413 of the Code of 1939. 806 Madison v. Rapid City, 61 S. Dak. 83, 87-88, 246 N. W. 283 (1932). The phrase "Subject to the provisions of this code relating to artesian wells and water" was placed at the head of the section declaring ownership of percolating water in the 1919 codification: S. Dak. Rev. Code 1919, § 348. 807 The supreme court stated by way of dictum in 1913: "The private owner of real estate, who sinks an artesian well on his premises, is the absolute owner of the water flowing therefrom and may control the whole thereof as he may see fit so long as he does no injury thereby to others; * * *." St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 267, 143 N. W. 124 (1913). 808 St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. Dak. 260, 269, 143 N. W. 124 (1913). |