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Show 56 CHARACTERISTICS OF WATERCOURSE there was evidence that there was vegetation on the entire ground surface at the place where the embankment was built, and that the land was cultivated, with less of the appearance of a channel than of a mere depression in the prairie. According to a finding of the jury, said the supreme court, the outlet for the water had some of the essential, distinctive attributes of a watercourse, but lacked others-among them, a frequent flow of water, or a flow which had any definite and other than an occasional source. The water in question was held to be diffused surface water. In both these Nebraska cases the supreme court was dealing with localized sources of water supply. The court failed to find enough, in the overall circumstances of either case, to satisfy what it believed to be the requisite elements of a watercourse. Diffused Surface Water "Streams are usually formed by surface waters gathering together in one channel and flowing therein. The waters then lose their character as surface waters and become stream waters."173 Under "Definiteness and Permanence," above, attention is called to a case in which the Montana Supreme Court adopted with approval a definition of watercourse which excluded sources as impermanent as diffused surface water.174 The question at issue was not whether a legally constituted watercourse might be supplied wholly by diffused surface water; it was whether the water in litigation was that of a watercourse or was diffused surface water. It was held that the evidence disclosed none of the elements required to constitute a watercourse. Therefore, this case is not good authority for the proposition-which is controverted by the great weight of authority in the West-that a stream fed solely by diffused surface water is not a watercourse. A number of western courts have recognized diffused surface water as a valid source of a watercourse both in fact and in law.175 An opinion of the Texas Supreme Court contains several quotations of authorities squarely in point.176 One in particular is to the effect that although llzMogle v.Moore, 16 Cal. (2d) 1, 9, 104 Pac. (2d) 785 (1940). 114LeMunyon v. Gallatin Valley Ry., 60 Mont. 517, 523, 199 Pac. 915 (1921). 175 Streams may be composed wholly of diffused surface water: Rait v. Furrow, 74 Kans. 101, 106-107, 85 Pac. 934 (1906). Where diffused surface waters flow into and become physically part of a stream, their classification changes and they become legally part of the stream: Jack v. Teegarden, 151 Nebr. 309, 314, 37 N. W. (2d) 387 (1949). See also Jaquez Ditch Co. v. Garcia, 17 N. Mex. 160, 161, 124 Pac. 891 (1912); Borman v.Blackmon, 60 Oreg. 304, 309-310, 118 Pac. 848 (1911); Johnson v. Metropolitan Life Ins. Co., 71 S. Dak. 155, 161, 22 N. W. (2d) 737 (1946);Richlands In. Co. v. Westview Irr. Co., 96 Utah 403, 418, 80 Pac. (2d) 458 (1938); Alexander v. Muenscher, 7 Wash. (2d) 557, 559-560, 110 Pac. (2d) 625 (1941). 116 International & G.N.R.R. v. Reagan, 121 Tex. 233, 241-242, 49 S. W. (2d) 414 (1932). The one paraphrased here is from 27 Ruling Case Law, p. 1066, §6. |
