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Show 32 CHARACTERISTICS OF WATERCOURSE collected in a gulch finally developed, over a period of 30 years, a visible stream of running water which was held to have met, by that time, the requirements of a definite stream.27 Size or Velocity Immaterial The volume of water flowing in the stream does not alone determine the character of the stream as an element of a watercourse. The flow in many cases may be very small;28 but if the other requirements of a stream are met and the other elements of a watercourse are present, the qualifications or classification as a watercourse may be satisfied whether the streamflow is that of a small brook or a great river. The size or velocity of the stream is not material; the flow may be small in volume, but "it must, however, be a stream in fact as distinguished from mere temporary surface drainage occasioned by freshets or other extraordinary causes."29 Continuity of Flow Generally not Required The generalrule. -It is the general rule-with some exceptions exemplified by cases mentioned immediately below-that to constitute a watercourse, the stream need not flow continually throughout the year nor throughout its accustomed course. Important variations enter into the interpretation of this principle. The inference in a Kansas case decided in 1906-Rait v. Furrow- is that a wet-weather flow is only a temporary stream, therefore lacks the element of permanence, and consequently does not satisfy the requirements for a watercourse.30 The decisions in two South Dakota cases of later date were along the same line, although here the emphasis was laid upon the impermanence of melting snow and summer rains as sources of supply in that they yielded only temporary streamflows.31 (See "Source of Supply," below.) The great weight of authority, however, is to the effect that the flow need not be continuous, with respect either to time32 or to distance throughout its 27Binning v. Miller, 55 Wyo. 451, 474-476, 102 Pac. (2d) 54 (1940). 2*Jaquez Ditch Co. v. Garcia, 17 N. Mex. 160, 161, 124 Pac. 891 (1912); Holman v. Christemen, 73 Utah 389, 397, 274 Pac. 457 (1929); Popham w.Holloron, 84 Mont. 442, 447-451, 275 Pac. 1099 (1929);Heard v. Refugio, 129 Tex. 349, 352-353, 103 S. W. (2d) 728 (1937); Alexander v. Muenscher, 7 Wash. (2d) 557, 559-560, 110 Pac. (2d) 625 (1941); Scott v. Watkins, 63 Idaho 506, 517, 122 Pac. (2d) 220 (1942); Snyder v. Platte Valley Public Power & In. Dist., 144 Nebr. 308, 313-314, 13 N. W. (2d) 160 (1944). "Miksch v. Tassler, 108 Nebr. 208, 213, 187 N. W. 796 (1922). 30Rait v. Furrow, 74 Kans. 101, 105-107, 85 Pac. 934 (1906). 31 Benson v. Cook, 47 S. Dak. 611, 615-616, 201 N. W. 526 (1924); Terry v.Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931). 32Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 86, 4 Pac. (2d) 369 (1931); Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 488, 101 Pac. 1059 (1909); Le Munyon v. Gallatin Valley Ry., 60 Mont. 517, 523, 199 Pac. 915 (1921); Reed v. Jacobson, 160 Nebr. 245, 248, 69 N. W. (2d) 881 {1955); Jaquez Ditch Co. v. Garcia, 17 N. Mex. 160, 161, 124 Pac. 891 (1912); Wyoming v.Hiber, 48 Wyo. 172, 184, 44 Pac. (2d) 1005 (1935). |