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Show 84 CHARACTERISTICS OF WATERCOURSE Classification: Floodwater.-Waters that were once part of a stream or other body of water and that have escaped therefrom and overflow the adjacent territory are defined in the judicial nomenclature of California as "flood waters."315 Implicit in their definition is the element of abnormality, in that they escape from the usual channels under conditions which do not ordinarily occur. Therefore, they can never be the flow of a stream at the end of its channel.316 Floodwaters are extraordinary vagrant waters which will not return to the stream when the high water therein recedes.317 They retain their character as such while "flowing wild" over the country.318 The essential distinction between floodwaters and diffused surface waters-both of which may be "flowing wild" over the country-is that floodwaters have broken away from a watercourse, whereas diffused surface waters have not yet become part of a watercourse.319 The fact that floodwaters happen to follow some natural channel, gully, or depression after breaking away from the stream does not affect their character as floodwaters or give to the course which they follow the character of a natural watercourse.320 The Arizona Supreme Court has adopted the classification of escaping overflow waters as floodwaters, and the distinction between floodwaters and diffused surface waters, as developed in the courts of California.321 Rejoinder with Original Watercourse A conflict in the authorities exists with respect to overflows that escape from the original stream but eventually rejoin it. The Nebraska Supreme Court held that overflow waters do not cease to be a part of the stream unless or until separated therefrom so as to prevent their return to its channel.322 In Washington, on the other hand, overflow waters that escaped from streams but returned at lower points by way of tributary channels were classified as outlaw 315Everett v. Davis, 18 Cal. (2d) 389, 393, 395, 115 Pac. (2d) 821 (1941). 316 In Everett v. Davis, 18 Cal. (2d) 389, 394-395, 115 Pac. (2d) 821 (1941), the court corrected a statement that it had made during the preceding year, in Mogle v. Moore, 16 Cal. (2d) 1, 12, 104 Pac. (2d) 785 (1940), to the effect that flood waters constituted overflow waters whether they escaped over the stream banks "or at the end of the channel." 317 Costello v. Bowen, 80 Cal. App. (2d) 621, 629, 182 Pac. (2d) 615 (1947). 318 Mogle v. Moore, 16 Cal. (2d) 1,9, 104 Pac. (2d) 785 (1940). 319McManus v. Otis, 61 Cal. App. (2d) 432, 440, 143 Pac. (2d) 380 (1943). 320 Id. 321 Southern Pacific Co. v. Proebstel, 61 Ariz. 412, 416-420, 150 Pac. (2d) 81 (1944); Maricopa County M.W.C. Dist. v. Warford, 69 Ariz. 1, 12, 206 Pac. (2d) 1168 (1949); Diedrich v. Famsworth, 100 Ariz. 269, 413 Pac. (2d) 774 (1966). 322Brineger v. Copass, 77 Nebr. 241, 243-244, 109 N. W. 173 (1906). The question has been settled in this State: Murphy v. Chicago B. & Q. R.R., 101 Nebr. 73, 77, 161 N. W. 1048 (1917). |