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Show ELEMENTS OF WATERCOURSE 33 course.33 Many courts have recognized that a stream channel may be dry at times.34 In fact, less than two decades after rendering the decision in Rait v. Furrow, discussed above, the Kansas Supreme Court stated that to give the requisite degree of permanence, it is not necessary that the water shall flow continuously in the channel; the fact that the stream may be intermittent in its flow, or that there may be no flow in droughty periods, will not deprive it of its character as a watercourse.35 Nor is the principle changed by the fact that the channel may be dry during a large part of the year.36 The implications of two cases from New Mexico are that the principle would be equally applicable to channels flush with water from heavy rains in hilly or mountainous regions but dry throughout the entire year in periods of extreme drought.37 Water remaining in long, deep pools or holes in the channel of a Texas river after the stream had ceased to flow were held to be part of the normal flow of the stream.38 Some expressions of the principle. -Within the widely recognized principle that the streamflow need not be continuous either in time or distance, but may be recurrent without sacrificing the classification of the system as a watercourse, courts have used various expressions as to how, to support the classification, the recurrence is manifested. Examples of this are: a frequent flow of water;39 uniform or habitual flows;40 usual or periodical flow;41 regular discharge through the channel.42 The streamflow need not be continual, but must be at least periodical, such as may be expected during a portion of each year.43 The supreme courts of Oregon and Utah have approved the classification where the streamflow was "fairly regular,"44 and where it occurred with "some degree of regularity."45 In California, the supreme court gave its approval with respect to a stream in which the flow in ordinary seasons began in November or December and ceased 33St. Paul Fire & Marine Ins. Co. v. Carroll, 106 S. W. (2d) 757, 758 (Tex. Civ. App. 1937, error dismissed). See "Channel-Continuity of Channel," below. ^Costello v. Bowen, 80 Cal. App. (2d) 621, 627, 182 Pac. (2d) 615 (1947);//? re German Ditch & Res. Co., 56 Colo. 252, 271, 139 Pac. 2 (1913); Barnes v. Sabron, 10 Nev. 217, 237 (1815);Shively v.Hume, 10 Oreg. 76, 77 (ISSl); Heard v.Refugio, 129 Tex. 349, 352-353, 103 S. W. (2d) 728 (1937); In re Johnson Creek, 159 Wash. 629, 630, 294 Pac. 566(1930). 3SHomor v. Baxter Springs, 116 Kans. 288, 289-290, 226 Pac. 779 (1924). 36Popham v. Holloron, 84 Mont. 442, 450-451, 275 Pac. 1099 (1929). 31Jaquez Ditch Co. v. Garcia, 17 N. Mex. 160, 162-164, 124 Pac. 891 (1912);Martinez v. Cook, 56 N. Mex. 343, 348-351, 244 Pac. (2d) 134 (1952). 38Humphreys-Mexia Co. w.Arseneaux, 116 Tex. 603, 609-611, 297 S. W. 225 (1927). 39 Town v. Missouri Pacific Ry., 50 Nebr. 768, 113-114, 70 N. W. 402 (1897). 40Johnson v. Metropolitan Life Ins. Co., 71 S. Dak. 155, 161, 22 N. W. (2d) 737 (1946). 41 Costello v. Bowen, 80 Cal. App. (2d) 621, 627, 182 Pac. (2d) 615 (1947). "Garrettv.Haworth, 183 Okla. 569, 570-571, 83 Pac. (2d) 822 (1938). 43Lux v. Hoggin, 69 Cal. 255, 417, 4 Pac. 919 (1884), 10 Pac. 674 (1886). A4Hansen v. Crouch, 98 Oreg. 141, 146, 193 Pac. 454 (1920). *5Holman v. Christensen, 73 Utah 389, 397, 274 Pac. 457 (1929). 450-486 O - 72 - 5 |
