| OCR Text |
Show 34 CHARACTERISTICS OF WATERCOURSE about June-a stream, said the court, of the character familiar in the State and in other semiarid regions;46 and a district court of appeal said that the require- ment means a stream in the real sense, which flows at those times when the streams of the region habitually flow.47 In Arizona, under conditions of irregu- larity of precipitation, both as to time and location, the supreme court found no difficulty in holding that a watercourse exists where the precipitation runs off the hills in a well-defined channel at irregular intervals.48 Some variations in interpreting the principle. -It is evident that interpreta- tions vary considerably regarding the requirement that while the streamflow must be definite and substantial, it need not be continuous. Doubtless, this is owing in large measure to the wide range in meteorological conditions throughout the West. To hold that a stream is not a watercourse because the channel is dry half or more of the year would eliminate from this category important sources of supply of many irrigated areas, for in the arid regions cessation of flow of streams during certain seasons of the year is a common phenomenon. For example, in New Mexico-which with respect to topographic and hydrological conditions is typical of the arid Southwest-the supreme court stressed the "enormous number of arroyos" which serve the purpose of drainageways during the rainy seasons but are dry at other times, and the unsuitability to southwestern conditions of a rule that to constitute a watercourse, water must be carried in the channel throughout the entire year or a majority of the time.49 During extremely dry cycles, some streams in the West, particularly the Southwest, carry little or no water for two or more consecutive seasons. A reasonable and practicable measure of recurrence of flow necessary to constitute the stream a watercourse is the condition prevalent in the general area in which the stream is found-that the water passes down the channel "in those seasons of the year and at those times when the streams in the region are accustomed to flow."50 On that premise, a permanent stream may be one that not only flows intermittently, but infrequently and at irregular intervals, if that kind of flow is characteristic of the area in question. Had the foregoing measure been applied by the South Dakota Supreme Court in the cases cited above under "The general rule,"51 the waters of the two draws in litigation would have been classed as those of natural streams or watercourses, to which the dry draw appropriation statute would have applied. "Lindblom v. Round Valley Water Col., 178 Cal. 450, 452-453, 173 Pac. 994 (1918). "McManus v. Otis, 61 Cal. App. (2d) 432, 440, 143 Pac. (2d) 380 (1943). 48 Globe v. Shute, 22 Ariz. 280, 289, 196 Pac. 1024 (1921). "Martinez v. Cook, 56 N. Mex. 343, 349-350, 244 Pac. (2d) 134 (1952). 50 San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 397,188 Pac. 554 (1920). See McManus v. Otis, 61 Cal. App. (2d) 432, 440, 143 Pac. (2d) 380 (1943). 51 Benson v. Cook, 47 S. Dak. 611, 615-617, 201 N. W. 526 (1924); Terry v. Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931). |
