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Show ELEMENTS OF WATERCOURSE 63 Negating Circumstances To facilitate comparison, some of the controlling circumstances or combinations of circumstances that have led the courts to decide against the existence of watercourses are brought together below. Topography -The water was not confined by any well-defined bed and banks.210 -In the general level of the country, there was only a slight natural depression with a gentle slope.211 -There was no semblance of a definite channel. The depression or swale in which it was attempted to carry off waste water was planted to crops and was cultivated year after year.212 -Sutter Basin was not a watercourse, but was a great catchment area which served principally for reception of the floodwaters of Sacramento River.213 Water Flows of water. -There was not a perennial stream.214 -There was no converging of the water into a single stream; it was not obvious where the runoff would flow.215 -The term "stream" was said not to mean water deposited during times of storm which immediately runs off and leaves in its course a mere stretch of sand and rock.216 -From the case record, it was not sufficiently clear whether or not the waters comprised a mere collection of floodwaters from rains and melting snow that ran off in the winter and spring, and did not actually comprise or enter any natural stream or other body of water.217 Source of water supply.-As noted under "Source of Supply," above, in two borderline cases where the resulting streamflows were not large and did not last long, the South Dakota Supreme Court rejected melting snow and rainfall as acceptable sources of supply.218 Elsewhere in much of the West, in comparable situations, the majority viewpoint would probably accept these water supplies as sources of watercourses. 210 Eastern Oregon Live Stock Co. v. Keller, 108 Oreg. 256, 257-258, 216 Pac. 556 (1923). 211 Dyer v. Stahlhut, 147 Kans. 767, 770, 78 Pac. (2d) 900 (1938). 212 Loosli v. Heseman, 66 Idaho 469, 481, 162 Pac. (2d) 393 (1945). 213 Gray v. Reclamation Dist. No. 1500, 174 Cal. 622, 648, 163 Pac. 1024 (1917). 214Eastern Oregon Live Stock Co. v. Keller, 108 Oreg. 256, 257-258, 216 Pac. 556 (1923). 2lsMuhleisen v. Krueger, 120 Nebr. 380, 381-382, 232 N. W. 735 (1930). 216San Pedro, L.A. & S.L.R.R. v. Simons Brick Co., 45 Cal. App. 57, 61-62, 187 Pac. 62 (1919). 217 Washington County In. Dist. v. Talboy, 55 Idaho 382, 389, 43 Pac. (2d) 943 (1935). 218Benson v. Cook, 47 S. Dak. 611, 613-617, 201 N. W. 526 (1924); Terry v.Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931). |