| OCR Text |
Show 40 CHARACTERISTICS OF WATERCOURSE water discharged at a fixed and definite point on the servient tract is a watercourse within the meaning of the rule applicable to such drainage. Conceding that to accomplish this purpose, such course must follow a ravine, swale, or depression of some depth, the fact that the force of the flowing water is not sufficient to carve out a channel with definite and well-marked sides or banks seemed unimportant to the court; that result would depend on the nature of the soil and velocity of the water.86 The concluding sentence of the definition, which was adopted in 1946 as the court's accepted definition of a natural drainage watercourse,87 was simply that: if the diffused surface water " 'in fact uniformly or habitually flows off over a given course, having reasonable limits as to width, the line of its flow is, within the meaning of the law applicable to the discharge of such water, a watercourse.' "88 In the 1917 case, before embarking upon this description and definition, the South Dakota Supreme Court observed that the term "watercourse" had come to have two distinct meanings-one as a watercourse to which riparian rights may attach, and the other to a watercourse through which an upper landowner has the statutory right to discharge drainage waters from his land.89 What constitutes bed and banks.-The bottom and sides of a characteristic watercourse, formed as such by water erosion, distinguish the channel from a normally smooth or rounded depression in the earth's surface. In borderline contests over the classification of flows of water as watercourses or as diffused surface waters, testimony as to the angle of inclination of the sides, condition of the bottom, and character of vegetation on the bed has been important. For example, there was evidence that where a certain California slough crossed the lands of the parties it had a well-defined channel and distinct banks of sufficient depth and declivity to preclude the crossing of vehicles at most places.90 Because of this and of other necessary elements, it was held that a watercourse existed along that section. The denuded condition of a Texas channel, absence of soil and vegetation, and presence of boulders and gravel showed without question the long persistence of a current; the channel was of such substantial, stable, and permanent character that its existence was easily recognized.91 In connection with evidence as to the stream of water and its source, a watercourse was held to exist. On the other hand, in the following situations the courts held that the features of the several depressions in litigation did not satisfy the requirements of a watercourse channel: (1) A depression 3 to 5 feet deep, 30 to 40 feet wide, no sharp and distinct banks; grass throughout most of its length, and 86 Thompson v. Andrews, 39 S. Dak. 477, 484, 165 N. W. 9 (1917). ^Johnson v. Metropolitan Life Ins. Co., 71 S. Dak. 155, 161, 22 N. W. (2d) 737 (1946). 88 Thompson v. Andrews, 39 S. Dak. 477, 484, 165 N. W. 9 (1917). 89Id. at 484. 90Haun v.De Vaurs, 97 Cal. App. (2d) 841, 842-843, 218 Pac. (2d) 996 (1950). 91 Hoefs v. Short, 114 Tex. 501, 505-507, 273 S. W. 785 (1925). |
