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Show FLOODFLOWS 83 cutting of a streambank through which damaging floodwaters were allowed to escape-interference, that is, not with escaped floodwaters, but with the natural flow of floodwaters within the stream channel. Continuing, the supreme court stated that in none of the cited cases had it been decided whether floodwaters, still remaining within the confines of the flood channel of a stream, are an inte- gral part of the watercourse or whether they have become diffused surface water. The court then held in Sund v. Keating, as noted above under "The general rule," that the floodwaters remained a part of the watercourse-that unless flood- waters top the banks of the flood channel or escape from some natural outlet, they are riparian in character, interference with which (except in the exercise of a lawful riparian right) to the damage of others is actionable.311 As a result of the foregoing decisions, the rule in Washington appears to be that floodwaters remain part of the watercourse while they remain within the flood plain of the stream, but on escaping therefrom they become diffused surface waters-the significance of their eventually returning to the stream, over the banks or by way of tributary channels, having not been specifically passed upon by the supreme court. Overflows Permanently Escaped from the Stream No contact with any watercourse.- Overflows that escape from a stream and that fail to rejoin the original stream or to flow into any other one are no longer waters of a watercourse, and the rules governing watercourses are no longer ap- plicable.312 There is no serious conflict of authority on this. The courts are not agreed, however, as to how these escaped waters should be classified. Classification: Diffused surface water.-In most western jurisdictions in which litigation on this matter has reached the high courts, "Overflow water that escapes from the banks of a running stream, and that does not return to its banks, nor find its way to another stream or watercourse," is classified as diffused surface water.313 Overflow water that "has ceased to be a part of a general current following the channel," and that "spreads out over the open country and settles in stagnant pools or finds some other outlet," loses its character as part of the watercourse and becomes diffused surface water.314 311 The court reached a similar conclusion in a 1967 case. Marshland Flood Control District of Snohomish County v. Great Northern Railway Co., 71 Wash. (2d) 365, 428 Pac. (2d) 531 (1968). In this case, the court relied heavily upon Conger v. Pierce County, 116 Wash. 27, 198 Pac. 377 (1921). 3l2Brinegar v. Copass, 11 Nebr. 241, 243-244, 109 N. W. 173 (1906). 313 Hengelfelt v. Ehrmann, 141 Nebr. 322, 327, 3 N. W. (2d) 576 (1942). This is the case with respect to overflow waters separated from the main body and spread out over the adjoining country without following any definite watercourse or channel: Wellman v. Kelley, 197 Oreg. 553, 565, 252 Pac. (2d) 816 (1953). Likewise with respect to overflow waters that escape from the flood plain of the stream: Sund v. Keating, 43 Wash. (2d) 36, 41-44, 259 Pac. (2d) 1113 (1953). 314 Broadway Mfg. Co. v. Leavenworth Terminal Ry. & Bridge Co., 81 Kans. 616, 622,106 Pac. 1034 (1910). This is so if the floodwater leaves the main current "never to return." Fordham v. Northern Pacific Ry., 30 Mont. 421, 431, 76 Pac. 1040 (1904). |
