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Show ELEMENTS OF WATERCOURSE 29 Substantial agreement as to basic elements. On the whole, despite some variations, little change has apparently occurred in prevailing judicial concepts of what is basically necessary to constitute a watercourse. There is substantial agreement among the high courts as to the essential elements of a watercourse. (See "The Three Essential Elements," below.) The variations occur chiefly in interpretations of these requirements, arising out of their applicability to widely varying sets of circumstances. To illustrate this point, brief mention may be made of significant variations in this field in the jurisprudence of South Dakota, which are discussed elsewhere in this chapter in connection with the features to which they pertain. Variations in interpretations. -In 1917, the South Dakota Supreme Court observed that the term "watercourse" had come to have two distinct meanings-one as a watercourse to which riparian rights attach, and the other a watercourse through which an upper landowner may discharge drainage water from his land.7 With respect to the latter, the court adopted a definition and description that included a uniform flow over a given course having reasonable limits as to width; and this feature was adhered to in 1946.8 However, in the 1946 opinion, no mention was made of other features adopted in 1917, particularly a rejection of the requirement that the given course be a channel with definite sides or banks carved by the action of the flowing water. In the meantime, the court decided two cases involving water rights, in which there were definite channels classified as "draws," the waters of which were held to be "mere surface water" because they were only temporary streamflows from impermanent sources of melting snow and summer rain.9 This series of cases contains several variations from generally prevailing interpretations of water- course characteristics-definite bed and banks to the channel, noncontinuity of flow of stream, and permanence of source consisting of melting snow and rain. Legislative Some legislatures have defined watercourse in connection with specific statutory authorizations. For example: 271, 139 Pac. 2 (1913); Hoefsv. Short, 114 Tex. 501, 505-511, 273 S. W. 785 (1925); Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 85-86, 4 Pac. (2d) 369 (1931); Wyoming v. Hiber, 48 Wyo. 172, 183-185,44 Pac. (2d) 1005 (1935); Garrett v. Haworth, 183 Okla. 569, 570-571, 83 Pac. (2d) 822 (1938); Scott v. Watkins, 63 Idaho 506, 517-518, 122 Pac. (2d) 220 (1942); Johnson v. Metropolitan Life Ins. Co., 71 S. Dak. 155, 161, 22 N.W. (2d) 737 (1946); Costello v. Bowen, 80 Cal. App. (2d) 621, 627, 182 Pac. (2d) 615 (1947); State v. Brace, 76 N. Dak. 314, 322,36 N.W.(2d) 330 (1949); Jack v.Teegarden, 151 Nebr. 309, 315, 37 N.W. (2d) 387 (1949); Doney v. Beatty, 124 Mont. 41, 45, 51, 220 Pac. (2d) 77 (1950);South Santa Clara Valley Water Cons. Dist. v. Johnson, 231 Cal. App. (2d) 388, 393-395, 41 Cal. Rptr. 846 (1964). ''Thompson v. Andrews, 39 S. Dak. 477, 483-484,165 N. W. 9 (1917). 'Johnson v. Metropolitan Life Ins. Co., 71 S. Dak. 155, 161, 22 N. W. (2d) 737 (1946). 9Benson v. Cook, 47 S. Dak. 611, 616-617, 201 N. W. 526 (1924); Terry v.Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931). |
