Cook v. Evans , 45 S.D. 43 ( 1922 )

WHITING, J.

[ 1 ] This cause is before us upon petition for rehearing, our opinion being reported in 45 S. D. 31, 185 N. W. 262. Reference is made to such opinion for a statement of the nature of the case, the issues, the facts, and the holdings. of this court. Petitioners urge numerous alleged errors in such holdings; but, after a careful consideration of their contentions, we are satisfied that we did not err except upon one point. It is true that we used the word “entry” in speaking of the time from which a party might base claim to riparian rights, and petitioners seem to be misled by the use of that word instead of the word “settlement,” construing our opinion as holding that riparian rights date from the filing of entry in a land office instead of the entering upon the land and taking possession thereof. The word “entry,” as used, when construed in connection with the accompanying statements, discloses that entry upon land rather than entry of land was intended.

[2] We did, however, in speaking of those who may have made unfounded claims to riparian rights based on entries upon lands after March 3, 1877, say:

“It does not follow, however, that a party who now makes claims as riparian owner may not be entitled) to recognition as one who has gained rights 'by user. If, in attempting to make use of their claimed riparian rights, certain of these parties have, in fact, actually appropriated waters to their own use in addition to such waters as they may have heretofore claimed as appropriators, they may, through user, have acquired rights that should be determined in this action. Such additional rights, not being based upon such acts of procedure, sanctioned by law or custom, as would constitute in law an appropriation, would vest at the end of the period necessary to acquire same by prescription. Under the facts of the case before us, all rights so acquired would be subsequent to and inferior to those rights which the several parties may have acquired through the sanctioned methods of appropriation ; furthermore, priority as between such additional rights would be governed by the dates upon which such rights became vested in the several parties.”

Upon further consideration, we are satisfied that the law, prior to the enactment of chapter 142, Session Laws 1881, was as laid down in 27 R. C. L. 175:

“Either by statute, or by a custom so well established and generally recognized as to have all the force of a statute, it is usual for persons intending to appropriate the waters of a running stream, or some part thereof, to give warning of their intention by posting at or near the - intended point of diversion a signed notice of their intention stating the amount of water intended to be appropriated, the place and means of diversion, the use or uses for which the water is desired, and generally the place where it is to be used, and a designation of the general route of the ditch or canal by which it is to be carried. These notices, however, are not indispensable to the valid appropriation of water. They are intended merely as the first act toward appropriation, to which the appropriation, when completed’ with reasonable diligence, shall relate, and shall thus become paramount to the rights of such persons as shall subsequently undertake to make an appropriation of the waters of the same stream. The actual appropriation of water, though not preceded by the posting or recording of any notice, is valid both as against persons claiming an interest in the water as riparian proprietors and as against subsequent appropriators thereof.”

However, any appropriation which may have been made without notice prior to the 1881 law, as well as all appropriations that may have been made under that law, are subject to the same limitations and restrictions, because of the rights of the public, as held to apply to appropriations based upon notices not statutory.

As so modified, our former opinion is affirmed, and petition for rehearing denied.