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Show 64 CHARACTERISTICS OF WATERCOURSE The Overall Situation: Water and Topography In the numerous factual situations that have been judicially considered and appraised with respect to existence of watercourses, it is evident that the courts often study not only the individual criteria separately, but also the whole combination of circumstances to which they belong. For example, in a Nebraska situation in which water directly traceable to falling rains appeared only when there were extraordinary freshets, and moved along a valley in which there was an undisputed watercourse-of which the water in litigation did not form a part and from which it did not originate nor return to-the contrast of this water situation was so great in every respect from that of an undisputed watercourse in the neighborhood that the court had no hesitancy in classifying it as diffused surface water.219 Another Nebraska situation litigated in the same general period involved water actually draining from rain, melting snow, and diffused surface water-the flow of which had no permanence or regularity as to time and was "dependent upon transient causes alone." The water was obstructed by an embankment at a place which the jury believed to be a well-defined channel, but was shown by evidence to be covered with vegetation and cultivated, having the appearance of a mere depression in the prairie.220 Here again, in the face of jury findings that (1) there was a clearly defined watercourse, which however, (2) was carrying diffused surface water, the court undoubtedly considered the overall situation in conceding that the outlet for the water had some of the essential, dis- tinctive, attributes of watercourses but lacked others-among them, a frequent flow of water or a flow with a definite and more than occa- sional source. Some other combinations of water and topography follow: -Runoff that is broadly diffused over the ground is not stream water.221 -A watercourse comprises more than mere surface drainage over land occasioned by unusual freshets or other extraordinary causes.222 -Insufficient for the classification of a watercourse is water from precipitation that at times collects or stands in low places, depressions, potholes, or shallow basins;223 or the existence of holes, gullies, or ravines in which diffused surface water from rain or melting snow is discharged at 219Morrissey v. Chicago, B. & Q.R.R., 38 Nebr. 406, 430-431, 56 N. W. 946 (1893). 220 Town v.Missouri Pacific Ry., 50 Nebr. 768, 772-775, 70 N. W. 402 (1897). 221 Sun Underwriters Ins. Co. of New York v. Bunkley, 233 S. W. (2d) 153, 155 (Tex. Civ. App. 1950, error refused). 222 Sanguinetti v. Pock, 136 Cal. 466, All-All, 69 Pac. 98 (1902);Hutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 488, 101 Pac. 1059 (1909); Miksch v. Tassler, 108 Nebr. 208, 213, 187 N. W. 796 (1922); Hoefs v. Short, 114 Tex. 501, 508, 273 S. W. 785 (1925); Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 85-86, 4 Pac. (2d) 369(1931). 223Doney v.Beatty, 124 Mont. 41, 50, 220 Pac. (2d) 77 (1950). |