This action was broaught seeking the condemnation of a right of way over defendant’s lands, upon which plaintiff would construct an irrigation ditch to convey onto plaintiff’s lands the waters of a certain stream. Plaintiff bases his claim herein solely upon the ground that his farm land's, so sought to -be irrigated, are riparian to-this particular stream. Judgment was for plaintiff. Prom such judgment and from an order denying a new trial, defendant has appealed.
[1] Respondent contends that the lower court should be sustained because there was no proper settled record. It appears that Judge McGee, the trial judge presiding at this trial, made a proper certificate to settle the record herein. In this certificate he referred to such record, reciting the number of pages thereof, and that it contained the judgment roll together with a full, true, and correct transcript of the proceedings had at the trial. The clerk of the circuit court neglected a duty prescribed by statute, and failed to attach this certificate to the remainder of the record; *146but he did place it, with such record, among the files in his office. This certificate was dated the date on which the motion for new trial was heard. This court will assume, the contrary not appearing, that such record and certificate were before the judge who heard the motion for new trial. As it does not appear that the failure of the clerk to attach such certificate to* the record was noted upon the hearing of such motion, and inasmuch as the certificate so clearly refers to the record to which it was intended to be attached as to permit of no doubt as to what the trial judge intended to include in the settled record, this court would not be warranted in holding that the trial court was bound' to deny the motion for new trial because of such omission, by the clerk of the circuit court, to physically attach the certificate to the record.
[2, 3] There are many assignments of error, and they relate to many questions. Defendant objected to the introduction of any evidence, on the ground:
“That the complaint does not state a cause of action, in that the complaint fails to show that there had been any appropriation of water by the plaintiff; and under the provisions of chapter r8o of the 'Session Laws of 1907 the riparian rights theretofore existing were repealed.”
Defendant also moved for a directed verdict on the ground that—
“Plaintiff has not shown that he is entitled to the relief, for the reason that he is not entitled to any riparian rights under me laws of the state of -South Dakota.”
While the above objection and motion did not directly present the question of the effect of the Desert Land Act of March 3, 1877 (.U. S. Comp. St. §§ 4674-4678), they, by implication, maintained that plaintiff had no rights, as riparian owner, to these waters for irrigation purposes. Respondent does not question but that the effect of such act is before us, but cites numerous cases wherein he insists this and the federal court have held that riparian rights might he acquired after 1877. An examination of the decisions in these cases discloses that in none of them was the effect of the Desert Land Act considered. In the case of Cook v. Evans, 45 S. D. 31, 185 N. W. 662, lately decided by this court, the question was directly presented as to whether any riparian rights could -be acquired in public waters subsequent to such act; and in *147that case this court held that no riparian rights in water for irrigation purposes could be acquired subsequent to the enactment of such act. There is no evidence showing that plaintiff’s lands were settled upon by the patentees thereof prior to March 3, 1877. Furthermore, the dates of the patents render it almost a certainty that settlement was not made until after that date. When plaintiff claimed as a riparian owner, the 'burden was upon him to establish such claim by proof of settlements upon these lands at a date that would give to the settlers such rights. Under the evidence, it does not appear that plaintiff or his grantors ever did acquire any riparian rights in and to such waters, other than the right to use the waters for domestic purposes. It therefore follows that, unless the plaintiff has some rights to the waters in question other than any pleaded) or proven herein, he is not in a position to maintain this action. There are other assignments of error that would have to' be sustained; but the matter above discussed is the one all-important matter, and we deem it unnecessary to discuss other assignments.
The judgment and order appealed from are reversed.