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Show ELEMENTS OF WATERCOURSE 69 But short existence alone does not bar permanence.-In 1906, the Kansas Supreme Court held in Rait v. Furrow that to give a stream the necessary degree of permanence in classifying it as a watercourse, it is not necessary that the stream shall have flowed in its present course for any particular length of time, provided that it now exhibits the attributes of permanence in its present course, this being a question of fact for the trial court to decide.257 In this case, the watercourse had originated in a flood, prior to which time there had been no definite or visible channel or course formed by water flowing occasionally down a depression. The flood, however, did cut a channel, well defined with banks, down through the depression in which water flowed steadily. Counsel "plausibly contended" that the water had not flowed in the stream for such length of time as to indicate permanence; that as it had not flowed from time immemorial, it could not be regarded as an ancient watercourse. The matter of permanence, however, said the supreme court, is a question of fact for the trial court; and although the existence of the watercourse in litigation originated in a flood, and only a year or two earlier, the facts stated appeared to be sufficient to support the court's finding. It is true that this decision in Rait v. Furrow implies that practically continuous flow of water is a prerequisite. On that point, it does not conform to the weight of authority as discussed above under "Stream-Continuity of Flow Generally not Required." The importance of the decision lies in its stressing of the element of permanence of supply, the determination of which is governed by present conditions and indications-not solely by long history, which is persuasive but not necessarily controlling. In this case, all the elements of a watercourse appeared to be permanent, even though of recent origin. The precedent set by the Kansas court on this point was followed by the Supreme Court of Texas.258 It was contended in this Texas case that a creek had not existed in 1874. The evidence showed that as early as 1884 or 1885 there was a channel, which at the time of the trial was well defined and in which water had been flowing for many years. Hence, the supreme court rejected the contention as to the effect of the absence of the stream in 1874. But besides, said the court, citing Rait v. Furrow, it is not necessary for the attachment of water rights to a stream that it should have crossed a particular tract of land for any particular length of time, if the stream now has a substantial existence and is of value as an irrigation stream. Utility of the Watercourse Value to adjacent lands.-An important but not essential characteristic of a watercourse is that it shall have flowed for such length of time and shall have attained a sufficient volume of water to furnish the advantages usually 257Rait v. Furrow, 74 Kans. 101, 102-104, 108-109, 85 Pac. 934 (1906). 258 Hoefsv. Short, 114 Tex. 501,510-511, 273 S.W.785 (1925). |