Lone Tree Ditch Co. v. Cyclone Ditch Co.

Citations

• 15 S.D. 519
• 91 N.W. 352
• 1902 S.D. LEXIS 68

Syllabus

<p>1. The riparian rights of the pre-emptor of public lands as against private parties attach at the time of settlement on the land, and not at date of final proof.</p> <p>2. Comp. Laws, § 2771, providing that the owner of land owns water standing thereon but not forming a definite stream, and that water in a definite stream formed by nature over and under the surface may be used by him so long as it remains there but he may not prevent the natural flow of the stream, is not inconsistent'with the act of 1881 prescribing that any person who may have or hold a title or possessing right or title, to any mineral or agricultural lands, shall be entitled to the usual enjoyment of the waters of the streams or creek for mining, milling agricultural, or domestic purposes, provided that the right to such use shall hot interfere with any prior right or claim to such waters, where the law has been complied with in doing the necessary work; and hence is not repealed thereby.</p> <p>3. Under Comp. Laws, § 2771, providing that water running in a definite stream formed by nature over and under the surface may be used by the owner of the land so long as it remains there, but he may not prevent the natural flow of the stream, a riparian owner may use a reasonable quantity of the water flowing over or along his lands for irrigation purposes.</p> <p>4. Appropriators of water whose rights were acquired subsequent to those of an upper riparian owner cannot complain of the use by such owner of the water for irrigation purposes.</p> <p>5. Whether the use.of a certain amount of water for irrigation purposes was excessive could not be determined on appeal where the evidence was not before the supreme court.</p>