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Show 82 CHARACTERISTICS OF WATERCOURSE the channel was higher than adjoining bottom land except at certain points where it was "broken by natural watercourses running into said river," high waters overflowing the banks in time of flood continued to flow in the same general direction as the channel, "and such portions thereof as do not flow over the rim, are discharged into the channel of the river when the flood subsides, through numerous natural water courses and channels, carrying and draining themselves into the river."306 In another one, the overflow waters returned to the stream "by way of Lincoln Creek," a tributary located apparently at the west end of the flooded area.307 A third case involved the navigability of a "slough" for transporting logs, and the right to protect land against floodwaters that escaped into the "alleged sloughs" from the banks of a river during freshets.308 According to the findings of the trial judge, there were certain "depressions or sloughs, more or less well defined, * * * with an outlet towards the southwest over the adjoining land to the Snoqualmie River; * * *." The opinion of the supreme court contained no statement as to the possibility, or otherwise, of these overflow waters draining back into the river as the floods subsided. In all these cases, the overflow waters were held to be diffused surface water, an outlaw and common enemy, without reference to the question of their eventually returning or not returning to the river. Nor was the question raised in the opinion of the supreme court in Sund v. Keating, decided in 1953, in which several of the previous decisions were reviewed.309 The case of Sund v. Keating is important not only in reaffirming the diffused surface water principle, but in explaining its development, in substance as follows: In Cass v. Dicks, because the floodwaters were not confined within the channel of a natural watercourse, it was assumed without discussion that the case was governed by the law of diffused surface waters. In the Harvey case, noting that the floodwaters had already escaped over the banks of the stream, they were treated as diffused surface water on the authority of Cass v. Dicks. And in Morton v.Hines, the rule was accepted that waters escaping from the banks of a stream become diffused surface water, subject to the laws applicable thereto.310 As above stated, the opinion in Sund v. Keating took no notice of the question of complete separation or eventual return of the escaped waters to the stream. Actually, this question was not involved in the case's factual situation. The controversy arose over the artificial 306Harvey v. Northern Pacific Ry., 63 Wash. 669, 671, 673, 674-677, 116 Pac. 464 (1911). This factual statement was taken from the amended complaint, the sufficiency of which was said by the supreme court to be the "only question before us." 307Morton v.Hines, 112 Wash. 612, 617-619, 192 Pac. 1016 (1920). 308Healy v. Everett & Cherry Valley Traction Co., 78 Wash. 628, 631, 634-635, 139 Pac. 609(1914). 309 Sund v. Keating, 43 Wash. (2d) 36, 41-42, 259 Pac. (2d) 1113 (1953). 310 Also cited was De Ruwe v. Morrison, 28 Wash. (2d) 797, 184 Pac. (2d) 273 (1947), but not Healy v. Everett & Cherry Valley Traction Co., 78 Wash. 628, 139 Pac. 609 (1914). |