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Show 76 CHARACTERISTICS OF WATERCOURSE FLOODFLOWS Classification Use of Terms In ordinary parlance, a flood may be a high moving body of water whether (1) confined within the banks of a stream channel or (2) overflowing the banks. As the swelling waters of a stream rise toward the tops of the banks, the stream is "in flood," whether or not the water actually spills over the top and inundates the adjacent land. There is no uniform concept of "flood" in the water rights decisions of the West. In many of them, the term is used without particular attention to the confined or unconfined state of the high waters. Thus, the Texas Supreme Court defines "floodwaters" as those waters that rise above the line of highest ordinary flow of a stream;281 and the Texas Court of Civil Appeals has added to this the concept that "generally speaking, [they] have overflowed a river, stream or natural watercourse and have formed a continuous body with the water flowing in the ordinary channel."282 In the last cited case the court, in construing the language of a policy that insured against loss or damage caused by a "Flood (meaning the rising of natural bodies of water)," held that water that ran into certain chickenhouses was not backed up from a river, creek, or other natural watercourse and must be regarded as diffused surface water, not as a flood within the meaning of the insurance policy. The Nebraska and Washington supreme courts apply the term "flood- water" to the water flowing within the flood channel or flood plain of a stream.283 In California and Arizona, waters that have escaped from a stream in great volume and are "flowing wild" over the country are characterized as "floodwaters."284 The purpose of this classification is to distinguish these flows from diffused surface waters, which also flow vagrantly over the country but are not, in these jurisdictions, waters that have escaped from a watercourse. In California, however, high waters within stream channels, and those that 2S1Motlv. Boyd, 116 Tex. 82, 111, 286 S. W. 458 (1926); Texas Co. v.Burkett, 117 Tex. 16, 28, 296 S.W. 273(1927). 282 Sun Underwriters Ins. Co. of New York \.Bunkley, 233 S. W. (2d) 153, 155 (Tex. Civ. App. 1950, error refused). 283 Courier v. Maloley, 152 Nebr. 476, 486, 41 N. W. (2d) 732 (1950); Bahm v.Ralkes, 160 Nebr. 503,514-515, 70 N. W. (2d) 507 (1955); Sund v. Keating, 43 Wash. (2d) 36, 41-45, 259 Pac. (2d) 1113(195 3). ™AMogle v. Moore, 16 Cal. (2d) 1, 9, 104 Pac. (2d) 785 {19^); Everett v.Davis, 18 Cal. (2d) 389, 393, 115 Pac. (2d) 821 (1941); Southern Pacific Co. v. Proebstel, 61 Ariz. 412, 416420, 150 Pac. (2d) 81 (1944). |