¶1(dissenting.) This case was brought to prevent defendants Heppner from diverting the waters of Plum creek. In so far as the waters of Plum' creek consist of storm and flood waters, the complaint does not state a cause of action. Benson v. Cook (S. D.) 201 N. W. 625, decided Dec. 18, 1924. I fail to find any allegations in the complaint that show that the waters of Plum creek constitute a “definite stream” within the meaning of section 348, Rev. Code 1919.
¶2Therefore, upon the authority of Benson v Cook, supra, no cause of action is alleged unless it be under the “Dry Draw Act,” chapter 180, Laws 1907. In St. Germain Irrigating Ditch Co. v. Hawthorne Ditch Co., 32 S. D. 260, 143 N. W. 124, that act was held unconstitutional as to pre-existing vested rights. I do not think the allegations of the complaint are sufficient to set forth a cause of action under the “dry draw” statute.