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Show ELEMENTS OF WATERCOURSE 39 examining the premises can see by the growth of willows where the natural channel runs;77 to the casual glance, the channel bears the unmistakable impress of the frequent action of running water;78 an observer should be able to perceive that a watercourse exists,79 and to determine where the water would flow in the case of rain or melting snow.80 The New Mexico legislature includes in its definition of watercourse "visible evidence of the occasional flow of water."81 Bed and Banks or Sides Necessary in most cases to classification of channel. -The requirement that the channel of a watercourse have a bed with banks or sides has been expressed by many courts and included in many definitions of a watercourse.82 It is the usual requirement in the West. The California Supreme Court held Rubio Canyon Wash near Pasadena to be a watercourse in the legal sense, saying that: "It is a channel with defined beds and banks made and habitually used by water passing down as a collected body or stream in those seasons of the year and at those times when the streams in the region are accustomed to flow."83 This definition expresses the view of a large majority of the courts. Exception in South Dakota.-The requirement that the channel have a bed and banks or sides cut by the flowing water has been downgraded in South Dakota, at least insofar as it pertains to watercourses of the character contemplated by the statute84 authorizing proprietors to drain their lands in the general course of natural drainage into any natural watercourse, or into any natural depression whereby the water will be carried into some natural watercourse.85 This has been mentioned before under the topics "General Features" and "Definiteness of Channel." According to the definition and description of a "drainage" watercourse given in 1917, a fixed and determinate course uniformly followed by surface 77 Wright v. Phillips, 127 Oreg. 420, 426, 272 Pac. 554 (1928). 78Simmons v. Winters, 21 Oreg. 35, 41-42, 27 Pac. 7 (1891); International & G.N.R.R. v. Reagan, 121 Tex. 233, 241-242, 49 S. W. (2d) 414 (1932); Doney v. Beatty, 124 Mont. 41, 45, 220 Pac. (2d) 77 (1950). 79 Wyoming v.Hiber, 48 Wyo 172, 187-188,44 Pac. (2d) 1005 (1935). S0Muhleisen v. Krueger, 120 Nebr. 380, 381-382, 232 N. W. 735 (1930). 81N. Mex. Stat. Ann. § 75-1-1 (1968). 82See Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 85-86, 4 Pac. (2d) 369 (1931);Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 488, 101 Pac. 1059 (1909); Mader v. Mettenbrink, 159 Nebr. 118, 127, 65 N. W. (2d) 334 (1954); Froemke v. Parker, 41 N. Dak. 408, 416, 171 N. W. 284 (1919);Hansen v. Crouch, 98 Oreg. 141, 146, 193 Pac. 454 (1920); Alexander v. Muenscher, 7 Wash. (2d) 557, 559-560, 110 Pac. (2d) 625 (1941);Binning v.Miller, 55 Wyo. 451, 463, 474475, 102 Pac. (2d) 54 (1940); N. Mex. Stat. Ann. § 75-1-1 (1968). 83 San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 397, 188 Pac. 554 (1920). 84 S. Dak. Comp. Laws Ann. § 46-20-31 (1967). 85 Thompson v. Andrews, 39 S. Dak. 477, 483-484, 165 N. W. 9 (1917). See Johnson v. ' Metropolitan Life Ins. Co., 71 S. Dak. 155, 161, 22 N. W. (2d) 737 (1946). |
