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Show 86 CHARACTERISTICS OF WATERCOURSE California.-Flood overflows of rivers are a common enemy which may be guarded against or warded off by one whose property is invaded or threatened, by structures that are merely defensive in nature and not calculated to interfere with the current of the water in its natural channel.327 A landowner who takes these measures to protect his lands is not liable for damage to lower and adjoining lands by exclusion of floodwaters from his own property, even though the damage to the other lands is increased thereby. Owners of these other lands have not only the same right, but also the duty of self-protec- tion.328 These rights and responsibilities of landowners apply to streamflows without regard to their so-called ordinary or extraordinary character. The same principles apply both to the right of a landowner to build works that will confine these high waters in the stream channel, and to his right to protect his land against floodwaters that have escaped from the stream and are "flowing wild" over the country. For that purpose, he may obstruct the flow of these floodwaters onto his land, even though such obstruction causes the water to flow onto the land of another.329 Idaho. -Owners of lands abutting upon a stream have the right to place such barriers as will prevent their lands from being overflowed or damaged by the stream and for the purpose of keeping it within its natural channel.330 This is particularly true with respect to streams that have well-defined banks and a permanent channel or bed. With respect to other streams, the courts must take into consideration the facts and conditions concerning the stream in litigation.331 Kansas-Distinctions between ordinary and extraordinary floods have been recognized, chiefly in the settlement of controversies over railroad structures across and along watercourses. The requirement was that provision be made for ordinary floods.332 Overflows that subsequently rejoin a stream remain a part of it; but overflow water permanently separated from a watercourse loses its character as stream water and becomes diffused surface water.333 The flow of the latter may not be obstructed to the damage of an upper owner.334 327 Weinberg Co. v. Bixby, 185 Cal. 87, 95, 96, 101, 196 Pac. 25 (1921). 328 Clement v. State Reclamation Bd., 35 Cal. (2d) 628, 635-636, 642-643, 220 Pac. (2d) 897 (1950). 329Mogle v. Moore, 16 Cal. (2d) 1, 10, 12, 104 Pac. (2d) 785 (1940); Horton v. Goodenough, 184 Cal. 451, 452-453, 194 Pac. 34 (1920). 330 Fischer v. Davis, 19 Idaho 493, 498-499, 116 Pac. 412 (1911); Boise Development Co. v. Idaho Trust & Savings Bank, 24 Idaho 36, 51-53,133 Pac. 916 (1913). 331 Fischer v. Davis, 24 Idaho 216, 229-230, 133 Pac. 910 (1913). 332 See Clement v. Phoenix Utility Co., 119 Kans. 190,195-197, 237 Pac. 1062 (1925). 333 Broadway Mfg. Co. v. Leavenworth Terminal Ry. & Bridge Co., 81 Kans. 616, 622, 106 Pac. 1034 (1910). Previously, the court had classified as diffused surface water, overflows from a stream in time of flood that later rejoined it: Missouri Pacific Ry. v. Keys, 55 Kans. 205, 216-218, 40 Pac. 275 (1895). 334 Dyer v. Stahlhut, 147 Kans. 767, 770, 78 Pac. (2d) 900 (1938). |