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Show ELEMENTS OF WATERCOURSE 3 7 definition refers to "a distinct and a defined channel" and "a plainly de- fined channel of a permanent character,"62 and the designation of public, appropriable waters include those "flowing in well defined channels or flowing through lakes, ponds, or marshes which constitute integral parts of a stream system."63 The special water rights laws of South Dakota that apply only to streams of minor flows relate to "dry draw," "ravine or watercourse" (See "Some Local Situations-Draws and Coulees," below).64 Terms designating channels.-The terms "river," "creek," and "brook" all refer to channels through which water flows either continuously or with a considerable degree of regularity, depending on the climate of the area and the particular season. Their chief differences are in size of channel and volume of streamflow. It is of course true that some channels named or locally known as creeks or brooks would not meet the accepted legal requirements of a watercourse. For example, the waters of a natural drainway known as Plum Creek, in southwestern South Dakota, were held to be "mere surface waters," not subject to appropriation under the "dry draw law"-although the court felt bound by an analogous precedent of 7 years' standing and admitted that the question was "a close one."65 However, in many and probably most instances, what are locally called creeks or brooks would be expected to meet watercourse requirements, for mere size is not of itself a controlling factor. Other terms designate channels which may or may not meet the watercourse requirements under particular sets of existing circumstances. These include "arroyo," "coulee," "canyon," "ravine," "gulch," "gulley," "draw," "wash." Whether or not created by the action of flowing water as many of them were, the classifications of these physical features as watercourse depend upon the present situation with respect to condition of the channel, source of water, and streamflow. Natural Channel To meet the requirements of a watercourse, the channel must be natural66-of natural origin.67 Exceptional circumstances under which a watercourse of artificial origin may be accepted in the category of a natural watercourse are noted below (see 62 N. Dak. Cent. Code Ann. § 61-01-06 (1960). 63Id § 61-01-01(1). MS. Dak. Comp. Laws Ann. § 46-1-6(3) (1967). "Terry v. Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931), following Benson v. Cook, 47 S. Dak. 611, 615-617, 201 N. W. 526 (1924). The holding in theBenson case with respect to requisite source of supply was an extreme one. See "Source of Supply," below. 66Jaquez Ditch Co. v. Garcia, 17 N. Mex. 160, 161, 124 Pac. 891 (1912); Allison v.Linn, 139 Wash. 474, 477-478, 247 Pac. 731 (1926). 61 State v. Brace, 76 N. Dak. 314, 322, 36 N. W. (2d) 330 (1949). |
