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Show 80 CHARACTERISTICS OF WATERCOURSE the drainage area; the existence or non-existence of conditions tending to retard the flow of the water therein; and whether there have been other floods and the frequency and magnitude thereof. If all the attendant conditions and circumstances are such that men of ordinary experience and prudence reasonably could have foreseen that such a flood as did occur might occur, it would not be extraordinary and unprecedented within the meaning of those terms as they were defined in the instructions to the jury. The question is one of fact, to be determined as any other question of fact. In the instant case the evidence is such that reasonable men might differ as to the answer to be made to the special interrogatory. Therefore, we cannot say that the jury's determination was not warranted by the evidence. The jury found the flood in question to be not extraordinary and unprece- dented. Flood Overflows Much water which, in times of flood, overflows the banks of a stream and inundates adjacent lands, drains back into the stream channel as the flood subsides. Part of the overflow, however, may become completely and permanently separated from the stream; and of this, part may join another stream, and part may spread out over marshy land and there evaporate or seep into the soil. In a 1953 case the Washington Supreme Court spoke of the "almost incredible conflict of authorities" as to when and under what circumstances floodwaters of a stream become diffused surface waters, so as to be governed by the rules relating to the latter rather than by the rules applicable to water of watercourses.299 The principle that diffused surface water, on joining the flowing stream of a watercourse and becoming subject to its current, ceases to possess the characteristics of vagrant diffused surface water and becomes part of the stream both physically and legally, is supported in the West by the great weight of authority. (See "Elements of Watercourse-Source of Supply-Diffused Surface Water," above.) It is the classification of stream waters-whatever their origin-on overflowing the stream banks in times of flood that has involved both real and apparent conflicts. Overflows not Separated from the Stream The general rule.-The more generally accepted rule is that floodwater overflowing the banks of a stream channel, not becoming permanently separated from the stream but receding into the main channel as the flood subsides, is classified as a part of the stream, not as diffused surface water. "It is well determined by the authorities," said the California Supreme Court a half century ago, "that waters flowing under circumstances such as 299Sund v. Keating, 43 Wash. (2d) 36,42, 259 Pac. (2d) 1113 (1953). |