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Show FLOODFLOWS 77 overflow in periodically inundating adjacent lands but that eventually recede into the channel, are also spoken of as floodwaters.285 The term "overflow" as used in these high stream water cases refers to the water that overtops the banks of a main stream channel, or that escapes from the flood plain of the watercourse. A flood overflow at a particular time may be classified as part of the watercourse, or as escaped floodwater, or as diffused surface water, depending upon the physical factual situation at such time and on the particular jurisdiction in which it occurs. Purpose of Classification Principles governing the classification of floodwaters are developed in connection with actions based upon the physical damage to property caused by obstruction or deflection of flow of the water, and have been chiefly of importance in determining the liability for such damage. Often these obstructions were caused by railway embankments, or by levees built to protect riparian lands from floods. Liability for damage, then, usually depended upon the classification of the flood as ordinary or extraordinary, or the classification of the overflow as part of the stream or as diffused surface water. In other cases, the classification of floodwaters has been important in connection with water rights controversies. This has occurred in some cases in which riparian owners have claimed that the natural overflows benefited their lands, as distinguished from cases in which they complained of injury caused from obstruction or deflection of the water by others; and in other cases where rights to the use of water have been involved in distinctions between ordinary flows and floodflows in the stream. Questions of rights and liabilities are considered below under "Collateral Questions Respecting Watercourses." First, the physical features will be discussed. Ordinary and Extraordinary Floods The distinction between floods which are "usual and ordinary" and those that are "unprecedented and extraordinary" is an old one. In a Mississippi River case, Chief Justice Brewer pointed out the ancient recognition of the duty not to unduly change the flow of a river by works constructed for individual benefit, as qualified by the limitation that individuals could protect their property from the consequences of "accidental or extraordinary" floods.286 He added that the limitation is recognized in this country as well, 285 See Miller & Lux v. Madera Canal & In. Co., 155 Cal. 59, 76-80, 99 Pac. 502,(1907);, Collier v. Merced In. Dist., 213 Cal. 554, 558, 2 Pac. (2d) 790 (1931); Chowchilla Farms v. Martin, 219 Cal. 1, 36-38, 25 Pac. (2d) 435 (1933); Peabody v. Vallejo, 2 Cal. (2d) 351, 368,40 Pac. (2d) 486 (1935). 286 Cubbing v. Mississippi River Comm'n., 241 U.S. 351, 366-367 (1916). |
