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Show 36 CHARACTERISTICS OF WATERCOURSE year in a definite channel having well-defined banks through most of its course.56 Although the stream ran only a short distance from the springs to its outlet in Rogue River, and in so doing never completely left a single holding of land-but did touch neighboring land for a short distance before reaching the river-the supreme court was satisfied from the testimony that the water flowed in a watercourse. Some judicial expressions.-In quoting a definition of a watercourse, the Nebraska Supreme Court stated, among other things, that it must appear that the water usually flows in a particular direction and by a regular channel having a bed with banks and sides.57 This is the usual approach in the West. Holdings of the Supreme Court of South Dakota have departed from the norm; but it is important to bear in mind that these deliberate departures have been made in cases involving the right to drain water from one's land into a watercourse-not the right to divert water from a watercourse in the exercise of a right of use. In 1946, this court held that: "A natural watercourse is defined as: 'If the surface water in fact uniformly or habitually flows off over a given course, having reasonable limits as to width, the line of its flow is within the meaning of the law applicable to the discharge of surface water, a water- course.' "58 [Emphasis supplied.] This was based upon a decision rendered some three decades earlier in which the South Dakota court observed that the term "watercourse" had come to have two distinct meanings-one referring to a watercourse to which riparian rights attach, and the other to a watercourse through which an upper landowner has the statutory right to discharge waters from his land.59 With respect to the drainage situation, the court adhered in this earlier case to a definition that it had previously adopted, the last paragraph of which is quoted in the 1946 opinion. Included in the description preceding this last paragraph was a statement denying the importance of a requirement that the force of the water be sufficient to cut a channel with definite and well-marked sides or banks. The wording of the 1946 definition, which is quoted in full above in this paragraph, simply ignores the question of a waterworn channel, or channel with bed and banks or sides; but it does not dispense with the necessity of a particular course "uniformly or habitually" used by the water. (See further discussion of these cases under "Definiteness of Channel" and "Bed and Banks or Sides," below.) Some legislative requirements.-The New Mexico legislature, in defining watercourses, refers to a "channel having definite banks and bed."60 The Nebraska statutory definition says, on this feature, "Any depression or draw two feet below the surrounding lands."61 The North Dakota statutory "' Fitzstephens v. Watson, 218 Oreg. 185,193-194, 344 Pac. (2d) 221 (1959). slMader w.Mettenbrink, 159 Nebr. 118,127, 65 N. W. (2d) 334 (1954). ^Johnson v. Metropolitan Life Ins. Co., 71 S. Dak. 155, 161, 22 N. W. (2d) 737 (1946). 59 Thompson v. Andrews, 39 S. Dak. 477, 483-484, 165 N. W. 9 (1917). 60N.Mex. Stat. Ann. § 75-1-1 (1968). 61 Nebr. Rev. Stat. § 31-202 (1968). |