the construction, maintenance and repair thereof from lands within the limits of the district."1

§ 467. Riparian Rights in North Dakota.-The common law riparian rights are recognized in the State of North Dakota. The statute provides: Water running in a definite stream formed by nature over or under the surface may be used by the owners of the land as long as it remains there; but he may not prevent the natural flow of the stream or the natural spring from which it commences its definite course, nor pursue nor pollute the same.2

And in the case of Sturr vs. Beck, decided by the Supreme Court of the United States, it was held under the statutes of that State that a riparian owner of land bordering upon a running stream has a right to the flow of its waters as a natural incident to his estate, and they cannot be lawfully diverted against his consent.3

1 See also Act approved March 7, 1891, entitled "An Act creating the office of State Superintendent of Irrigation and Forestry, and

prescribing the duties thereof.”— Stat. 1891, p. 216.

2 Levisee's Dakota Codes, 2d ed. 781.

8 133 U. S. 541.

I. Subject Treated in General.

$468. Particular Features.-Irrigation in State.-In general what has been said about the particular features of North Dakota and of the sub-humid region' will also apply to the State of South Dakota. The supply of water in rivers, streams and lakes is large, but as yet it is utilized very little for the purpose of irrigation as compared with its possibilities. The art of irrigation is practiced more as a valuable adjunct to the rainfall of the State than as an absolute necessity. The principal feature of the State is the wonderful artesian well basins, one of the greatest being the James or Dakota River Valley Basin, which is known to extend from twenty miles

1 See Ante Sections, 458, 459.

east of the James River to the Missouri River on the west, and possibly further. Water is obtained in abundance wherever the water-bearing strata have been tapped. The depth of the water-bearing strata varies, being at the south end of the basin from thirty to six hundred feet below the surface, and about fifteen hundred feet near Devil's Lake. This is partly due to the drift in the strata and partly to the difference in elevation.

The flow of some of these wells is enormous when the size of the pipe or casing is taken into consideration. The Woonsocket well, near Huron, is noted because it throws a fourinch stream of water seventy-one feet high. The actual flow of the well is two thousand seven hundred feet per minute or six cubic feet per second.

II. General Statutory Enactments.

§ 469. Territorial Irrigation Laws.-The laws adopted by the Territory before its division into North and South Dakota was adopted by South Dakota when it became a State. An abstract of these laws has been given in the chapter devoted to North Dakota.1

§ 470. Corporations for Sinking Artesian Wells.-On March 8, 1890, there was approved an Act to encourage the construction of artesian wells.2

Section 1 of said Act provides: "It shall be lawful for any person or persons, corporation or corporations, company or companies to construct artesian wells upon any lands owned or leased by such person, company, or corporation, for the purpose of power and the irrigation of land for agricultural purposes, and for any and all purposes for which said water from said well may be utilized."

The provisions of this Act are somewhat similar to the Act of March 6, 1891, of North Dakota, an abstract of which has been given in the previous section."

1 See ante Sections 460 - 462. Comp. Laws of Dakota, 1887, Secs. 2029-2038. Also Secs. 3116-3125.

2 See Stat. 1890, p. 245.

3See ante Section 464, Laws of North Dakota 1891, p. 107.

The Act provides that a right of way may be obtained for ditch purposes, but that improved lands shall not be crossed by more than one ditch where one can be made to serve the purpose. It also provides for disposing of the surplus water; penalties are prescribed for interfering with or injuring any of the works; the owners must keep all ditches and waterways in good repair; and when the ditch crosses the lands of a person such person may apply to the owner of the ditch for a right to use the surplus water flowing therein to irrigate his lands, and such owner shall allow him to do so on payment of a just rental. Water rates are to be fixed by the County Commissioners.

III. Irrigation District Law.

§ 471. An Act Providing for the Sinking of Artesian Wells for Public Purposes.-Organization of Districts.-On March 9, 1891, there was approved an Act entitled "An Act authorizing civil townships to sink artesian wells for public purposes and to issue bonds therefor.' "1

Section 1. "That the water of the artesian basin underlying or being in the shale formation, in all townships in the State of South Dakota which shall petition for and sink artesian wells as hereinafter provided, and not heretofore appropriated, is hereby declared to be the property of the public, and is dedicated to the use of the people of the State of South Dakota subject to appropriation as hereinafter provided."

Sec. 2 provides: That whenever twenty or more persons, each owning not less than eighty acres of land, in any township of the State, shall make an application in writing to the State Engineer of Irrigation, requesting him to locate within said township artesian wells, not to exceed nine in number if said wells shall be six inches in diameter and not to exceed sixteen in number, if said wells shall be four and onehalf inches in diameter, for the purpose of supplying the public with water, it shall be the duty of said engineer to locate in said township the number of wells mentioned in

1 Stat. 1891, p. 196.

the application, at such places as in his judgment may best subserve the interest of all the resident landowners of the township.

The State Engineer must file the said application, with his report locating said wells, in the office of the Register of Deeds for the county. His report must contain the number of wells, the size of each well, and the exact location of each, together with a full description thereof; and notice to the Board of Supervisors of filing said application and report must be made by the Register of Deeds.

§ 472. Same.-Voting of Bonds. Construction of Works. The chairman of the Board of Supervisors shall within five days after receipt of said notice give notice to the electors of said township of an election for the purpose of voting upon the question of issuing bonds for the purpose of sinking the artesian wells; rules for the conduct of said election are then provided. "The ballots used in said election shall be printed or written in substantially the following form: Shall the township of issue bonds for the sinking of artesian wells at the places mentioned in the notice of this election? Yes or No.'" If the election is carried in favor of issuing the bonds the town clerk shall deposit in the office of the Register of Deeds of the county a duplicate of the canvass of votes for the same.

The Act provides that the Board of Supervisors shall advertise for bids for the construction of the wells and publish the fact that no money will be paid nor liability incurred until the said well or wells shall be completed and accepted by the State Engineer of Irrigation. Every person whose bid is accepted must within twenty days thereafter commence the actual work of sinking the same with all convenient speed until completion. The State Engineer upon receiving the notice of the completion of any well must examine and if satisfactory accept the same.

§ 473. Conveyance of Water-Title to Property.-Lien for Water Rent―The Supervisors shall convey the water from wells thus constructed to the highest point of land upon the tract to be irrigated.