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Show ELEMENTS OF WATERCOURSE 57 there is apparently some authority for the proposition that the supply of a legally constituted watercourse must be more permanent than mere diffused surface water, it is not satisfactory to conclude that no watercourse exists merely because that is the source, for a stream may be composed wholly of such water. In addition, even diffused surface water becomes a watercourse at the point where it begins to form a legally acceptable channel and stream of water. The foregoing conclusion is inevitable. A Colorado decision states that the flow of natural streams "is made up of rains and snowfall on the surface," as well as springs and percolating ground water.177 Part of the water from the rain and snowfall sinks into the ground and joins streams in the watershed by that route, and part reaches the streams by another route-diffused flows over the surface. Decisions to the effect that these diffused flows are acceptable as sources of watercourses are in the large majority in the West, and they are supported by the better reasoning. Spring Water "We have also held that where springs form the fountain head of living watercourses they are a part and parcel of the stream."178 The physical characteristics of springs, and rights to the use of spring waters, are treated later, in chapter 18. At this point it is sufficient to note that (1) in some instances, the flow from a spring simply forms a marshy area in the immediate vicinity, where it sinks into the ground or evaporates without moving away on the surface, and hence fails to satisfy the legal requirements of a watercourse; whereas (2) in other cases, spring water collects in a channel and becomes a watercourse, or it spills over the bank of a flowing stream and thus is physically tributary to the watercourse to the same extent as other sources of supply.179 Spring water is defined in chapter 2 as water that breaks out upon the surface of the earth through natural openings in the ground. There is little question about classifying as a definite source a spring the discharge from which augments the flow of a watercourse year after year.180 Questions have 177In re German Ditch & Res. Co., 56 Colo. 252, 271, 139 Pac. 2 (1913). 178In reAhtanum Creek, 139 Wash. 84, 100, 245 Pac. 758 (1926). 179 But see Texas Co. v. Burkett, 117 Tex. 16, 28-29, 296 S. W. 273 (1927), in which the Texas Supreme Court was unable to say on the evidence whether the flow from springs along the banks of a stream was of sufficient volume to be of any value to riparian proprietors, or added perceptibly to the general volume of water in the bed of a stream, and hence held that they belonged to the owner of the land on which the springs arose. In Barnes v. Sabron, 10 Nev. 217, 237-239 (1875), the evidence showed that water from springs along the banks and bed of a stream disappeared in the earth in certain seasons; but it also showed that in most instances this disappearance coincided with heavy upstream diversions of creek waters, or else the water reappeared shortly in the streambed. 180 A definite source, as a spring: Pyle v. Richards, 17 Nebr. 180, 182, 22 N. W. 370 (1885). |