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Show ELEMENTS OF WATERCOURSE 41 mowing machines run in it; no general cut in the soil by the frequent flow of water.92 (2) A depression several miles long, some 80 feet wide, a few inches deep; gently sloping sides; cultivated to grain when dry and part planted to vines.93 (3) A draw covered with grass; no banks; no waterworn channel; easily crossed by a vehicle almost everywhere.94 (4) The evidence silent as to whether Garrison Draw-one-fourth to one-half mile wide and several miles long-has a channel with well-defined bed and banks; held to be a wide valley, a typical West Texas draw.95 According to the California Supreme Court, in a decision rendered in 1902, cited and quoted with approval in 1959 by a district court of appeal, the most approved definitions are to the effect that banks of watercourses are those boundaries which contain the waters at their highest flow-that is, the fast land which confines the water in its channel or bed in its whole width as determined by its highest flow.96 The bed of a river is thus bounded by the permanent or fast banks by which its waters are confined, even though during most of the year the actual flow follows a winding channel in the overall channel, parts of the bed being cultivated when the streamflow permits. The Supreme Court of Arizona thus defined these characteristics of a channel:97 The bed is that portion of the channel which carries the waters at their ordinary stage. The banks are the elevations of land which confine the waters to their natural channel when they rise to the highest point at which they are confined to a definite course and channel. Questions relating to streambed and banks have been considered in a number of Texas cases where, in considerable degree, their importance has grown out of the statutory definition of navigable streams and its relation to land titles.98 After a series of court decisions on this matter, the Texas Supreme Court adopted, as a definition of a streambed, that portion of its soil that is covered by the water, not at either its high stage or its low watermark, but at its height under normal conditions and seasons.99 92Gibbsv. Williams, 25 Kans. 214, 215-216, 221 (1881). 93Sanguinetti v. Pock, 136 Cal. 466, 470-471, 69 Pac. 98 (1902). "Wyoming v. Hiber, 48 Wyo. 172, 187-188, 44 Pac. (2d) 1005 (1935). 95 Turner v. Big Lake Oil Co., 62 S. W. (2d) 491, 493 (Tex. Civ. App. 1933), affirmed, 128 Tex. 155,96 S. W. (2d) 221 (1936). 96 Ventura Land & Power Co. v. Meiners, 136 Cal. 284, 290, 68 Pac. 818 (1902), cited approvingly in Bishel v. Faria, 342 Pac. (2d) 278, 280-281 (Cal. 1959). See Bishel v. Faria, 53 Cal. (2d) 254, 258-261, 347 Pac. (2d) 289, 1 Cal. Rptr. 153 (1959). 91Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 85-86, 4 Pac. (2d) 369(1931). 98Tex. Rev. Civ. Stat. Ann. art. 5302 (1962). The rule prescribed by the statute for determining the navigability of streams was made for the purpose of the statute, which related to the surveying for individuals of lands lying on navigable watercourses. "Motl v. Boyd, 116 Tex. 82, 108-109, 286 S. W. 458 (1926). The more detailed rule on which this conclusion was based has been stated in Alabama v. Georgia, 64 U. S. 505, 515(1859). |