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Show 30 CHARACTERISTICS OF WATERCOURSE The "General Provisions" chapter of the North Dakota water statute contains the following definition of a watercourse:10 A watercourse entitled to the protection in the law is constituted if there is a sufficient natural and accustomed flow of water to form and maintain a distinct and a defined channel. It is not essential that the supply of water should be continuous or from a perennial living source. It is enough if the flow arises periodically from natural causes and reaches a plainly defined channel of a permanent character. The New Mexico statute providing for the appropriation of natural waters flowing in "streams and watercourses" contains the following definition:11 A watercourse is hereby defined to be any river, creek, arroyo, canyon, draw, or wash, or any other channel having definite banks and bed with visible evidence of the occasional flow of water. The Nebraska law authorizing individual landowners to drain their lands 'into any natural watercourse or into any natural depression or draw" contains the following provision:12 Any depression or draw two feet below the surrounding lands and having a continuous outlet to a stream of water, or river or brook shall be deemed a watercourse. The Three Essential Elements As noted in chapter 2, "Classification, Definition, and Description of Available Water Supplies," a watercourse comprises three essential elements: (1) a definite stream of water, (2) flowing in a definite natural channel, and (3) originating from a definite source or sources of supply. However, the several elements and their associated characteristics are all subject to judicial constructions that are not always harmonious and cannot be expected to be, because their applications to particular sets of physical conditions depend upon the facts of each case. As the Wyoming Supreme Court well said, too much stress ought not, perhaps, to be placed upon any one element, and all should be given due consideration.13 The ensuing discussion of these matters contains a selection of examples intended to illustrate some of the varying circumstances under which western courts have decided that watercourses exist. Stream Moving Body of Water The stream throughout most of its course is a moving body of water,14 with a continuous or intermittent flow in one direction.15 The streamflow is 10 N. Dak. Cent. Code Ann. § 61-01-06 (1960). 11 N. Mex. Stat. Ann. § 75-1-1 (1968). l2Nebr. Rev. Stat. § 31-202 (1968). 13 Wyoming v. Hiber, 48 Wyo. 172, 183, 44 Pac. (2d) 1005 (1935). lAHutchinson v. Watson Slough Ditch Co., 16 Idaho 484, 488, 101 Pac. 1059 (1909); Doney v. Beatty, 124 Mont. 41, 51, 220 Pac. (2d) 77 (1950). 15St. Paul Fire & Marine Ins. Co. v. Carroll, 106 S. W. (2d) 757, 758 (Tex. Civ. App. 1937, error dismissed). |