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Show 70 CHARACTERISTICS OF WATERCOURSE attendant upon streams. Thus, the stature of a watercourse may be attained where the channel carries a stream of water of such well-defined existence and size as to make its flow valuable to the owners of land along its course.259 This feature is not to be confused with the fact that there are times when the flow of a stream can be a detriment to the adjacent lands-a common phenomenon. That is, generally speaking, the stream is something of value to these lands, but when augmented with storm or floodwaters it is quite the reverse, unless provision is made for protection of the threatened lands260 or for storage of the floodwaters.261 The watercourse classification of a stream that is useful to the valley through which it flows is not affected by its behavior when overladen with storm waters. Water rights.-The fact that a watercourse furnishes the advantages usually attendant upon streams of water may include its uses by appropriators of the water as well as by riparian landowners. If it is of this character, it may be held as it was in Hoefs v. Short, to meet the requirements of a natural watercourse to which water rights, whether riparian or by appropriation, attach.262 In Hoefs v. Short, the Texas Supreme Court was impressed by the facts that rainwater ran down Barilla Creek in sufficient quantity and with such regularity and frequency as to be valuable for irrigation, that for years people had been irrigating successfully from the creek, and that they were still doing so. Hence, the court reasoned that the facts as to bed, banks, and permanency of source of water supply were merely evidentiary that the stream could be used for exercising irrigation water rights. When the fact of utility is conceded or established, as here, said the court, the stream necessarily is one to which water rights attach, regardless of variations from the ideal stream of physiographers and meteorologists-conclusions supported not only by com- mon sense and reason but by authority as well. Two years later, the same court applied the same principle to another Texas stream, in the section in- volved in litigation, "whether in flood stage, normal flow stage, or stand- ing in pools."263 In holding that the flow from a certain spring constituted a watercourse, the Washington Supreme Court stated that: "Another thing should be taken into consideration. For many years appellant and his predecessors in interest had 259 Week v. Los Angeles County Flood Control Dist., 104 Cal. App. (2d) 599, 609, 232 Pac. (2d) 293 (1951); Jack v. Teegarden, 151 Nebr. 309, 314, 37 N. W. (2d) 387 (1949); Sun Underwriters Ins. Co. of New York v. Bunkley, 233 S. W. (2d) 153, 156 (Tex. Civ. App. 1950, error refused). 260 Week v. Los Angeles County Flood Control Dist, 104 Cal. App. (2d) 599, 609, 232 Pac. (2d) 293 (1951). 261Motlv.Boyd, 116 Tex. 82,115-116, 286 S.W. 458 (1926). 262Hoefs v.Short, 114Tex. 501,506-507,510, 273 S. W. 785 (1925). 263 Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 610, 297 S.W. 225 (1927). |
