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Show 52 C HARACTERISTICS OF WATERCOURSE Dakota Supreme Court in Benson v. Cook,152 which has been given some attention in the discussion of "Stream," above. The controversy arose over the right to use water flowing down Ash Coulee for irrigation purposes, and the controlling question was whether Ash Coulee was a "definite stream" within the meaning of a statute relating to "dry draws."153 In holding that this channel did not contain a "definite stream," the supreme court found that the channel had no permanent source of supply. It contained some water while snow was melting in the spring, varying generally from a few days to a few weeks; and after heavy summer rains, from a few hours to a day or two. Although there were some springs at intervals along the coulee, their flow failed to form streams for more than very short distances. Seven years later, in a comparable situation, the South Dakota court had an opportunity to review this interpretation of "permanent source," the question being "admittedly a close one."154 However, as the principle established in Benson v. Cook had been the law of the State for some 7 years, the court felt constrained to follow it, believing that an attempt now to establish a different rule would be neither salutary nor advisable. One may infer that if this had been a matter of first impression in the State, the supreme court might then have been less extreme in its imputation of impermanence of melting snow and rainfall supplies. In any event, to adopt generally and literally the view taken in Benson v. Cook would result in excluding many definite and substantial streams from the category of watercourses. Consequently, sources of this character that yield large quantities of water over considerable periods of time in regular seasons have been held in various jurisdictions to be definite sources. For example, the existence of a watercourse was in controversy with respect to a California stream which the supreme court found to be "of the character familiar in this state, and in other semiarid regions."155 It carried a substantial current during the rainy season and thereafter while snows in the surrounding mountains were melting, but the flow ceased entirely as the dry summer advanced. The evidence was clear to the effect that the flow in the well-defined stream channel consisted of the runoff of the usual and annually recurring fall of rain and snow. This the supreme court held to be a watercourse to which riparian rights attached. Another good example appears in a Texas case in which the primary question was whether a certain creek was a stream to which irrigation rights attached.156 The creek occupied a channel with well-defined bed and banks, its stream being fed by the rainfall on its watershed of approximately 225,000 152 Benson v. Cook, 47 S. Dak. 611, 615-617, 201 N. W. 526 (1924). 153 The present "dry draw law" is found in S. Dak. Comp. Laws Ann. § § 46-1-6 and 46-4-1 to 46-4-8 (1967). 154 Terry v.Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931). lssLindblom v. Round Valley Water Co., 178 Cal. 450, 452-453, 173 Pac. 994 (1918). iS6Hoefs v. Short, 114 Tex. 501, 503-504, 506, 510, 273 S. W. 785 (1925). |