Title: Knight v. Grimes - Supreme Court of South Dakota, April 21, 1964, Rehearing Denied May 20, 1964
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Permanent Link: http://ufdc.ufl.edu/WL00004465/00001
 Material Information
Title: Knight v. Grimes - Supreme Court of South Dakota, April 21, 1964, Rehearing Denied May 20, 1964
Physical Description: Book
Language: English
Publisher: 127 North Western Reporter, 2d Series
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Knight v. Grimes - Supreme Court of South Dakota, April 21, 1964, Rehearing Denied May 20, 1964 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 28
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004465
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text


W. W. KNIGHT, Plaintiff and Appellant,
J. W. GRIMES, Chief Engineer and Execu-
tive Officer of South Dakota State Water
Resources Commission and the following
named persons, as members of said Com-
mission, to wit: Albro Ayres, E. M. Brady,
Lester Brue, Carol Cronin, Lauren A. Da-
vis, Stanley A. Johnson and John Sutton,
Defendants and Respondents.
No. 10072.

Supreme Court of South Dakota.
April 21, 1964.
Rehearing Denied May 20, 1964.

Action for declaratory judgment, at-
tacking constitutionality of the 1955 stat-
utes restricting right to appropriation of
water. The Circuit Court of Brookings
County, Fred J. Nichol, J., dismissed the ac-
tion and plaintiff appealed. The Supreme
Court, Bandy, Circuit Judge, held that the
S statutes are valid.


I. Public Lands -1 14(3)
Patents under Desert Land Act carried
with them no water rights. Desert Land
Act, 1, 43 U.S.C.A. 321.

2. Waters and Water Courses e107(3)
Evidence did not warrant finding that
waters under plaintiff's land constituted a
definite- stream, but showed only percolat-
ing waters. SDC 1960 Supp. 61.0101 et seq.,
61.0401 et seq.

3. Waters and Water Courses @=100, 101
The right to take and use percolating
water does not constitute an actual owner-
ship of water prior to withdrawal.

4. Waters and Water Courses The 1955 statutes restricting rights to
appropriation of water are valid. SDC
1960 Supp. 61.0101 et seq., 61.0401 et seq.;
U.S.C.A.Const. Amends. 5, 14; Const. art.
6, 2, 13; Desert Land Act, 1, 43 U.S.C.
A. 321.

W. W. Knight, pro se.
Frank L. Farrar, Atty. Gen., Walte
Weygint, Alan Williamson, Asst. Attyv.
Gen., Pierre, for defendants and respo.d.

BANDY, Circuit Judge.
In an action seeking a declaratory ju:dg.
ment the plaintiff, as the owner of land
overlying ground water, attacks the consti-
tutionality of Chapters 430 and 431 of the
Laws of 1955. (Now, respectively, SDC
1960 Supp. 61.01 and 61.04) He contends
that these acts violate the 5th and 14th
Amendments to the Constitution of the
United States, and sections 2 and 13 r,
Article VI of the South Dakota Constit-
tion. Upon full consideration of the ma:trr
the trial judge dismissed the action. In o
doing he recognized plaintiff's vested righr
to irrigate four acres of land by reason A'
prior appropriation.

Many procedural questions have been
raised, but as we do not consider them ma-
terial to disposition of the case we proceed
directly to the determinative issues.

[1) The Desert Land Act, Ch. 107, 19
Statutes at Large, 377 (43 U.S.C.A. 321)
became effective.in 1877. The patents for
the land involved herein were issued in
1882. They carried with them no water
rights. California Oregon Power Co. v.
Beaver Portland Cement Co., 295 U.S. 142,
55 S.Ct. 725, 79 L.Ed. 1356. In fact, on
the oral argument the plaintiff conceded
that the rights he claims arose under ter-
ritorial and state law. We proceed on that
At and prior to the issuance of these
patents the matter of "water rights" had
been fixed by statute in Dakota Territory.
By section 255 Revised Civil Code of 177
it was provided:
"The owner of the land owns water
standing thereon, or flowing over or
under its surface, but not forming a
definite stream. Water running in a

Cite as 127 I

definite stream, formed by nature over
or under the surface, may be used by
him as long as it remains there; but he
may not prevent the natural flow of the
stream, or of the natural spring from
which it commences its definite course,
nor pursue nor pollute the same."
By the year 1955 this statute, through a
series of amendments had been modified to
read in SDC 61.0101 as follows:

"Ownership and right of use. Sub-
ject to vested private rights, and except
as hereinafter in this section specifical-
ly provided, all the waters within the
limits of this state, from whatever
source of supply, belong to the public
and, except navigable waters, are sub-
ject to appropriation for beneficial use.
Subject to the provisions of this Code
relating to artesian wells and water,
the owneZ of the land owns water
standing thereon, or flowing over or
under its surface, but not forming a
definite stream. Water running in a
definite stream, formed by nature, over
or under the surface, may be used by
such landowner as long as it remains
there; but he may not prevent the
natural flow of the stream, or of the
natural spring from which it com-
mences its definite course, or of a nat-
ural spring arising on his land which
flows into and constitutes a part of the
water supply of a natural stream, nor
pursue nor pollute the same, except
that any person owning land through
which any nonnavigable stream passes,
may construct and maintain a dam
across such nonnavigable stream if the
course of the water is not changed,
vested rights are not interfered with,
and no land flooded other than that
belonging to the owner of such dam or
upon which an easement for such pur-
pose has been secured. Nothing in this
section shall be construed to prevent
the owner of land on which a natural
spring arises, and which constitutes the
Source or part of the water supply of
a definite stream, from acquiring a

r.W.2d 708

right to appropriate the flow from such
spring in the manner provided by law
for the appropriation of waters."
Chapter 430, Laws of 1955 expressly re-
pealed SDC 61.0101 and substituted in lieu
thereof a statute containing the following
"61.0101 General state policy. It is
hereby declared:
"(1) That because of conditions pre-
vailing in this state the general wel-
fare requires that the water resources
of the state be put to beneficial use to
the fullest extent of which they are
capable, and that the waste or unrea-'
sonable method of use of water be pre-
vented, and that the conservation of
such water is to be exercised with a
view to the reasonable and beneficial
use thereof in the interest of the people
and for the public welfare. The right
to water or to the use or flow of water
in or from any natural stream or wa-
tercourse in this state is and shall be
limited to such water as shall be rea-
sonably required for the beneficial use
to be served, and such right does not
and shall not extend to the waste or un-
reasonable use or unreasonable method
of diversion of water;
"(2) That all water within the state
is the property of the people of the
state, but the right to the use of water
may be acquired by appropriation in
the manner provided by law;
"(3) That the people of the state
have a paramount interest in the use
of all the water of the state and that
the state shall determine what water
of the state, surface and underground,
can be converted to public use or con-
trolled for public protection;

"(4)-That the protection of the pub-
lic interest in the development of the
water resources of the state is of vital
concern to the people of the state and
that the state shall determine in what
way the water of the state, both sur-

B~ --


face and underground, should be de-
veloped for the greatest public bene-
"(5) That it is the established policy
of this state:

"(a) That the use of water for do-
mestic purposes is the highest use of
water, and takes precedence over all
appropriative rights;
"(b) That the right of a municipality
to acquire and hold rights to the use
of water should be protected to the
fullest extent necessary for existing
and future-uses, but that no munici-
pality shall acquire or hold any right
to waste any water, or to use water
for other than municipal purposes, or
to prevent the appropriation and ap-
plication of water in excess of its
reasonable and existing needs to use-
ful purposes by other subject to the
rights of the municipality to apply
such water to municipal uses as and
when necessity therefore exists."

The remainder of the chapter concerns
itself with procedures relating to "waters
flowing in definite streams".

Chapter 431, Laws of 1955 expressly re-
pealed the provisions contained in SDC
61.04, which had been headed and described
as "Regulations as to Wells", and which
specifically described and referred to arte-
sian wells.

This new SDC 1960 Supp. 61.04 is par-
ticularly directed to ground water, therein
described as "'Ground water', under the
surface, whatever may be the geologic res-
ervoir in which it is standing or moving".
It defines vested rights as being:

"61.0401 (11) 'Vested rights,' beneficial
uses of ground water under diversions
and applications of water prior to the
passage of this chapter. The right to
take and use water for beneficial pur-
poses where an owner or lawful agent
is engaged in the construction of works
for the actual application of water to a

beneficial use at the time of the passage
of this chapter, provided such works
shall be completed and water is actual.
ly applied for such use within a rea-
sonable time thereafter."

By SDC 1960 Supp. 61.0404 it is pro

"Appropriation of water. Subject to
vested rights as herein defined, any
person desiring to appropriate any
ground water described in this chapter
shall give notice to the Commission in
a form to be prescribed, the beneficial
use to which it is proposed to apply
such water, the location of the pro-
posed well, the name of the owner of
the land on which such well will be
located, the amount of water applied
for, the use for which it is desired and
if the proposed use is irrigation, the
description of the land to be irrigated
and the name of the owner thereof.
Notice shall be required for wells on
which construction has commenced or
has been completed prior to the effec-
tive date of this chapter. If the use
to which the water is to be put is a
domestic use, no application need be
made. In all other respects the proce-
dure for appropriating water under
chapter 61.01 shall be followed inso-
far as practicable."

[2] Apparently desiring to directly in-
volve both Chapters 430 and 431, Laws of
1955 the plaintiff offered to stipulate that
both well defined streams and percolating
waters were to be found under different
areas of his land. The defendants declined
this offer and presented evidence front
which the trial judge, erroneously, we think,
found that the waters under the plaintiff's
land constitute a definite stream. We be-
lieve that the record shows only percolatitg
waters to underlie the plaintiff's land.

With relation to water rights, three situa-
tions could exist:

(1) Where the common law had not been
applied. (2) Where the common law had

Cite as 127 N

been applied. (3) Where a statute had been
enacted. Clearly, the third situation exists
here and is highlighted by prior opinions
of this court, particularly St: Germain Ir-
rigating Ditch Co. v. Hawthorne Ditch Co.,
1913, 32 S.D. 260, 143 N.W. 124.
The question, squarely presented, is as
:o whether the legislature may, without
compensation, abolish the rule of (so-
called) absolute ownership of unappropri-
ated percolating waters and substitute the
doctrine of appropriation for beneficial use
under r state supervision?

[3] Beyond doubt there has been an
visionon of a pre-existing right or inter-
est. It seems desirable to clearly focus
on the nature of this right or interest. The
:notion that this right to take and use per-
colating water constitutes an actual owner-
ship of the water prior to withdrawal has
been demonstrated to be legally fallacious.
Bassett v. Salisbury Mfg. Co., 1862, 43 N.H.
569, 82 Am.Dec. 179; Katz v. Walkin-
shaw, 1902, 141 Cal. 116, 70 P. 663, 64 L.R.
A. 236; Ohio Oil Company v. Indiana,
i900, 177 U.S. 190, 20 S.Ct. 576, 44 L.Ed.
722. In fact this was recognized by this
court in Metcalf v. Nelson, 1895, 8 S.D. 87,
65 N.W. 911, wherein it wrote:

"While it may not be technically cor-
rect to say .that the landowner is the
absolute owner of percolating waters
gathered into a spring or well, such is
often the expression of the courts and
text writers, and probably means what,
in respect to water, is practically equiv-
alent to ownership,-the exclusive right
to use and dispose of it."
Likewise, this court in Deadwood Central
P. Co. v. Barker, 1901, 14 S.D. 558, 86 N.W.
619, perceived that the rule was adopted
to protect the landowner in the use of his
own land and not as a statement of property
rights in percolating water, saying:
"'* The reason for this rule is
that, as percolations spread themselves
in every direction through the earth, it

GRIMES S.D. 711:
[.W.2d 708

is impossible to avoid disturbing them
without relinquishing the necessary en-
joyment of the land. The law does not,-
therefore, forbid their disturbance."'
It should be noted that Section 265 of the-
1877 Revised Civil Code pertaining to this
matter provided:
"The owner of land in fee has the
right to the surface and to everything
permanently situated beneath or above
it." (Emphasis supplied)

[4] South Dakota is largely a semi-arid
state. The legislature was fully justified in
finding that the public welfare requires the
maximum protection and utilization of its
water supply.
Borrowing the language of the court in
Southwest Engineering Co. v. Ernst, 1955,
79 Ariz. 403, 291 P.2d 764, involving the
constitutionality of a somewhat similar stat-
ute, the court wrote:
"It can thus be seen that a conflict
occurs between appellant and the state
by reason of the interest of the public
in the preservation from destruction of
a resource essential to the sustenance
of life. Where the public interest is
thus significantly involved, the prefer-
ment of that interest over the property
interest of the individual even to the
extent of its destruction is a distin-
guishing characteristic of the exercise
of the police power. The principle
which we recognize here as controlling
rests upon historic precedent extending
back into the common law, Respublica
v. Sparhawk, 1 Dall. 357, 1 L.Ed. 174,
Bowditch v. City of Boston, 101 U.S.
16, 25 L.Ed. 980, and has had continu-
ous recognition almost to the present
moment. United States v. Caltex
(Philippines), Inc., 344 U.S. 149, 73
S.Ct. 200, 97 L.Ed. 157.
"It has application not alone to the
disasters of fire, flood, pestilence and
war, but to other circumstances where
public interests dictate an unavoidable


choice between one class of property as
against another."
As is summarized in 11 Am.Jur., Con-
stitutional Law, at page 1009 thereof:
"No rule in constitutional law is bet-
ter settled than the principle that all
property is held subject to the right
of the state reasonably to regulate its
use under the police power in order to
secure the general safety, public wel-
fare, public convenience and general
prosperity, and the peace, good order,
and morals of the community."
-' In Hudson County Water Co. v. Mc-
Carter, 1908, 209 U.S. 349, 28 S.Ct. 529, 52
L.Ed. 828, it was written:
"All rights tend to declare themselves
absolute to their logical extreme. Yet
all in fact are limited by the neighbor-
hood of principles of policy which are
other than those on which the particu-
lar right is founded, and which become
strong enough to hold their own when
a certain point is reached. The limits
set to property by other public inter-
ests present themselves as a branch of
what is called the police power of the
state. The boundary at which the con-
flicting interests balance cannot be de-
termined by any general formula in
advance, but points in the line, or help-
ing to establish it, are fixed by the de-
cisions that this or that concrete case
falls on the nearer or farther side.

"It sometimes is difficult to fix bound-
ary stones between the private right of
property and the police power when, as
in the case at bar, we know of few
decisions that are very much in point.
But it is recognized that the state as
quasi-sovereign and representative of
the interests of the public, has a stand-
ing in court to protect the atmosphere,
the water, and the forests within its
territory, irrespective of the assent or
dissent of the private owners of the
land most immediately concerned. *

"* it appears to us that few pub.
lic interests are more obvious, indis.
putable, and independent of particular
theory than the interest of the public
of a state to maintain the rivers that
are wholly within it substantially un-
diminished, except by such drafts upon
them as the guardian of the public
welfare may permit for the purpose of
turning them to a more perfect use.
This public interest is omnipresent
wherever there is a state, and grows
more pressing as population grows. It
is fundamental, and we are of opinion
that the private property of riparian
proprietors cannot be supposed to have
deeper roots. Whether it be said that
such an interest justifies the cutting
down by statute, without compensation,
in the exercise of the police power, of
what otherwise would be private rights
of property, or that, apart from statute,
those rights do not go to the height
of what the defendant seeks to do, the
result is the same. The pri-
vate right to appropriate is subject not
only to the rights of lower owners,
but to the initial limitation that it may
not substantially diminish one of the
great foundations of public welfare
and health.

"We are of opinion, further, that the
constitutional power of the state to in-
sist that its natural advantages shall
remain unimpaired by its citizens is not-
dependent upon any nice estimate of the
extent of present use or speculation as
to future needs. The legal conception
of the necessary is apt to be confined
to somewhat rudimentary wants, and
there are benefits from a great river
'that might escape a lawyer's view.
But the state is not required to submit
even to an aesthetic analysis. Any
analysis may be inadequate. It finds
itself in possession of what all admit
to be a great public good, and what it
has it may keep and give no one rea-
son for its will.

.2' -;

712 S. D.

Cite as 127 N.W.2d 708

"The defense under the 14th Amend-
ment is disposed of by what we have
said." 1

The scope of this power is summarized
in 11 Am.Jur., Constitutional Law, 302 in
this language:

"The fixed rule and basic standard
by which the validity of all exercise
of the police power is tested is that
the police power of the state extends
only to such measures as are reasonable
and that all police regulations must be
reasonable under all circumstances.
Too,much significance cannot be given
to the word 'reasonable' in considering
the scope of the police power in a con-
stitutional sense, for the test used to
determine the constitutionality of the
means employed by the legislature is to
inquire whether the restrictions it im-
poses on rights secured to individuals
by the Bill of Rights are unreasonable,
and not whether it imposes any restric-
tions on such rights. It has been said
that the only limitation upon the exer-
cise of the police power is that such
exercise must be reasonable. The va-
lidity of a police regulation therefore
primarily depends on whether under all
the existing circumstances the regula-
tion is reasonable or arbitrary and
whether it is really designed to accom-
plish a purpose properly falling within
the scope of the police power."

"While such regulations are subject to
judicial scrutiny upon fundamental
grounds, yet a considerable latitude of
discretion must be accorded to the law-
making power; and so long as the

I. For those interested in further applica-
tions of the police power, attention is
directed to Territory v. O'Connor, 1889,
5 Dak. 397, 41 N.W. 746, 3 L.R.A. 355;
Nebbia v. New York, 1934, 291 U.S. 502,
54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R.
1469; State v. Finney, 1944, 65 Idaho
630, 150 P.2d 130; State ex rel. Emery
v. Knapp, 1949, 167 Kan. 546, 207
P.2d 440; City of Des Moines v. Man-
hattan Oil Co., 1921, 193 Iowa 1096, 184
127 N.W.2d--45V2

regulation in question is not shown to
be clearly unreasonable and arbitrary,
and operates uniformly upon all per-
sons similarly situated in the particu-
lar district, the district itself not ap-
pearing to have been arbitrarily se-
lected, it cannot be judicially declared
that there is a deprivation of property
without due process of law, or a denial
of the equal protection of the laws,
within the meaning of the 14th Amend-
ment." Reinman v. City of Little Rock,
1915, 237 U.S. 171, 35 S.Ct. 511, 59 L.
Ed. 900.

Without intending to cast doubts on the
sufficiency thereof, it is observed that the
procedural portions of Chapters 430 and
431, Laws of 1955, have not been called into
question and are not here before the court.

The rule as to eminent domain is thus
epitomized in 29 C.J.S. Eminent Domain
6, at page 784 thereof:

"Eminent domain takes property be-
cause it is useful to the public, while
the police power regulates the use of,
or impairs rights in, property to pre-
vent detriment to public interest; in
the exercise of eminent domain private
property is taken for public use and the
owner is compensated, while the police
power regulates an owner's use and
enjoyment of property, or deprives him
of it, by destruction, for the public
welfare, without compensation other
than the sharing of the resulting gen-
eral benefits. Constitutional provisions
against taking private property for
public use without just compensation
impose no barrier to the proper exercise
of the police power."

N.W. 823, 23 A.L.R. 1322; Baumann v.
Smrha, D.C., 145 F.Supp. 617; Gin S.
Chow v. City of Santa Barbara, 1933,
217 Cal. 673, 22 P.2d 5,
Water rights and ground water legisla-
tion has been the subject of many law re-
view articles, among them being those in
30 Rocky Mt.L.Rev. 416; 1 Kan.L.Rev.
125; 11 Okla.L.Rev. 26; 22 Mont.L.Rev.
42; 38 N.D.L.Rev. 243 and 42 Neb.L.Rev.

S.D. 713


Being convinced that the legislature was
justified in believing that the public wel-
fare requires conservation and preservation
of the water supply of the state, that it
is not required that irreparable damage
be done before action can be taken to con-
serve and preserve, and that it has not
been shown that the regulations adopted
are unreasonable or arbitrary, the order of
the trial court dismissing such action is

HANSON and HOMEYER, JJ., concur.

BANDY, Circuit Judge,
ROBERTS, J., disqualified.

sitting for

SIOUX FALLS, formerly Northwest Se-
curity National Bank of Sioux Falls, as
Executor of the Estate of Dana 0. Lemb-
cke, deceased, Plaintiff-Appellant,
V. ,
Kenneth J. DANIEL, also known as Dr. K.
J. Daniel, Northwestern National Bank of
Sioux Falls, Madison Branch, Madison,
South Dakota, formerly Northwest Securi-
ty National Bank of Sioux Falls, Madison
Branch, Madison, South Dakota, and the
State of South Dakota, Defendants-Re-
No. 10085.

Supreme Court of South Dakota.
April 21, 1964.

Action to quiet title involving two cer-
tificates of deposit payable to depositor or
payable on death to another. The Circuit
Court, Lake County, George A. Rice, J., en-
tered judgment decreeing such other person
to be sole owner of certificates and executor
appealed. The Supreme Court, Hanson, J.,

held that certificates of deposit constitute
invalid attempt to transfer property on
death without conforming to statute of


1. Wills S=69
"Will" is statement of testator's intend-
ed disposition of his property after death.
See publication Words and Phrases
for other judicial constructions anti

2. Wills =a88(1)
An otherwise valid contractual instru-
ment is not rendered testamentary merely
because it provides for payment of money
or transfer of property at or upon death of
maker, donor, or obligor, and if such instru-
ment vests enforceable interest in other
party, in praesenti, it is not testamentary.

3. Wills <=89
Bank certificates of deposit payable to
depositor or payable on death to another
conveyed no interest in praesenti to the
other person, were ambulatory and rev-
ocable until depositor's death, and consti-
tuted invalid attempt to transfer property
at death without conforming to statute of
wills. SDC 1960 Supp. 6.0414.

Robert R. Spencer, Madison, for plaintiff-

Frank L. Farrar, Atty. Gen., Pierre, J. H.
Lammeis, State's Atty., Madison, for State
of South Dakota, respondent.

L. F. Ericsson, Madison, for K. J. Daniel,

Oren P. Coler, Chamberlain, for Gerhard
G. Lembcke, Intervener.

HANSON, Judge.

Mrs. Dana O. Lembcke died leaving two
certificates of deposit payable to "Mrs.

714 s.D.


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