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Show FLOODFLOWS 81 these, notwithstanding they may consist of a large expanse of water on either side of the main channel, constitute but a single watercourse and that riparian rights pertain to the whole of it."300 The Oregon Supreme Court has reaffirmed the principle that so long as overflow waters form one continuous body, flowing in the ordinary course of the stream and returning to the natural channel as they recede, they are waters of a watercourse, although not confined within the banks of the stream.301 And there have been decisions in some other States to the same effect.302 Some of the decisions-chiefly but not wholly the more recent ones-specifi- cally adopt the "flood plain" or "flood channel" concept of a watercourse in time of high floods. As above noted (see "Elements of Watercourse-Channel- Flood plain"), the flood channel or flood plain of a live ordinary stream has been defined as the land adjacent to the ordinary channel which is overflowed in times of high water, from which the floodwater returns to the main channel at lower points as the flood subsides. Thus, in 1953, the Washington Supreme Court, discussing the authorities, held that (1) a stream must be viewed as consisting of its normal banks and what is termed its "flood channel"; (2) that so long as overflow waters remain within this flood channel, these overflow floodwaters are properly classified as riparian waters rather than diffused surface waters; and (3) that being riparian waters, the rules relating to watercourses would apply.303 (Previous holdings of the Washington court are noted below.) The Nebraska Supreme Court, declaring in a series of decisions its adherence to this rule, designated the water flowing in the flood channel or flood plain as "floodwater."304 The situation in Washington.-In 1896, the Washington Supreme Court held that water escaping from a river in time of flood was diffused surface water-an outlaw and a common enemy.305 The overflow water in litigation in this case gathered in a low part of plaintiffs land, where it "passes off through the soil, or sinks beneath the surface." Such water of course had permanently escaped from the stream channel. This holding has been reaffirmed in decisions in which the significance of the return, or failure to return, of the escaped waters to the original stream was not dwelt upon. In one of them, in which the rim of 300 Miller & Lux v.Madera Canal & In. Co., 155 Cal. 59, 77, 99 Pac. 502 (1907). 301 Wellman v.Kelley, 197 Oreg. 553, 565, 252 Pac. (2d) 816 (1953). 302 See Broadway Mfg. Co. v. Leavenworth Terminal Ry. & Bridge Co., 81 Kans. 616, 621-622, 106 Pac. 1034 (1910), supplanting the opposite principle declared in Missouri Pacific Ry. v. Keys, 55 Kans. 205, 216-218, 40 Pac. 275 (1895); Wine v. Northern Pacific Ry., 48 Mont. 200, 208, 136 Pac. 387 (1913); Buchanan v. Seim, 104 Nebr. 444, 446, 177 N. W. 751 (1920); Franks v. Rouse, 192 Okla. 520, 137 Pac. (2d) 899 (1943); Bass v. Taylor, 126 Tex. 522, 529, 90 S. W. (2d) 811 (1936). 303Sund v. Keating, 43 Wash. (2d) 36, 42-45, 259 Pac. (2d) 1113 (1953). See also Bass v. Taylor, 126 Tex. 522, 529-530, 90 S. W. (2d) 811 (1936). 304 SeeBahm v.Raikes, 160 Nebr. 503, 514-515, 70 N. W. (2d) 507 (1955). 305 Cass v. Dicks, 14 Wash. 75, 77, 44 Pac. 113 (1896). 450-486 O - 72 - 8 |