OCR Text |
Show Chapter 3 CHARACTERISTICS OF WATERCOURSE "The stream or body of water, although its particles are transient and ever changing, is deemed, for purposes of legal definition, a fixed object so long as it can thus be identified,* * V1 DEFINITION AND GENERAL DESCRIPTION "A river is more than an amenity, it is a treasure. It offers a necessity of life that must be rationed among those who have power over it."2 This discerning statement by Justice Holmes, made in an interstate case involving the Delaware River and its tributaries, was directed at the major type of watercourse universally known as a river. But its truth applies just as surely to much smaller streamflows called rivers in the arid part of the nation, where great rivers are few and far between, and likewise to even smaller ones with channels that become dry and are expected to remain dry during a part of every year. The purpose of the brief discussion that follows is to present a broad summary of the major characteristics of the vitally important natural feature known legally as a watercourse. In later parts of this chapter, the physical characteristics of a watercourse and their legal implications are discussed, in some detail, with supporting authorities. The Legal Composition of a Watercourse Surface waters in watercourses are waters flowing continuously or intermit- tently in natural surface channels from definite sources of supply, and waters flowing through lakes, ponds, and marshes which are integral parts of a stream system. The term "watercourse" is in common use. It means a definite stream in a definite channel with a definite source or sources of supply, and it includes the underflow. The term "stream" is often used alone, in which case it is practically synonymous with "watercourse." For example, the term "natural stream" as used in the Colorado constitution3 has been construed by the State Supreme Court as including all "watercourses" and their tributaries.4 The South Dakota Supreme Court made a distinction between "definite stream" as used in a special statute of the State and "watercourse."5 The court 1 Utah Metal & Tunnel Co. v. Groesbeck, 62 Utah 251, 256, 219 Pac. 248 (1923). 1New Jersey v.New York, 283 U.S. 336, 342 (1931). 3Colo. Const., art. XVI, § § 5 and 6. See "State Water Policies-Declarations of Policy," in chapter 1. AIn re German Ditch & Res. Co., 56 Colo. 252, 271, 139 Pac. 2 (1913). "Benson v. Cook, 47 S. Dak. 611, 616, 201 N. W. 526 (1924). The special statute, S. Dak. Rev. Code § 348 (1919), Code § 61.0101 (1939), was repealed by Laws 1955, ch. 430. (26) |