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Show 44 CHARACTERISTICS OF WATERCOURSE Continuity of Channel An apparently well-established principle states that continuity of a watercourse is not broken by interruptions in continuity of the channel-that is, changes in character of the channel which depart from the normal requirements in greater or less degree but do not permanently interrupt the flow of water. This is important to a water user on the lower part of such a watercourse, for it protects him against injury occasioned by diversions from the upper part by junior appropriators or others who seek to show that there are really two or more independent watercourses. Thus, while the rule is ordinarily expressed that a watercourse must have a well-defined channel, bed, and banks, instances have been noted in which these features were recognized as slight, imperceptible, or even absent at points along an otherwise undoubted watercourse, without destroying its classification as such.109 Again, segregated swamps and marshes would scarcely be classified as watercourses under ordinary circumstances,110 yet "There may be a continu- ous watercourse through a body of swamplands."111 As stated by several courts, the fact that a stream flows through a swamp along part of its course does not deprive it of the character of a watercourse.112 It is not essential to a watercourse, said the California Supreme Court in an early leading riparian water rights case, that the banks shall be unchangeable throughout its course, or that there shall be everywhere a visible change in the angle of ascent, making the line between bed and banks.113 It may spread out over a wide, shallow place,114 even without enclosure by apparent banks,115 without thereby losing its classification as a watercourse and turning into diffused surface water.116 Although the rule that there must be well-defined banks is relaxed under these circumstances, it is still necessary that the current and course of the water must be clearly perceptible117 -unless the connection between the upper and lower courses of the main channel be established by other means, as noted below. Ways in which this has been handled may be shown by a few examples. Thus, where the bed of the stream is such that, except during high water flows, the water disappears at various points and comes to the surface lower down, 109 Hoefsv. Short, 114 Tex. 501, 507, 273 S. W. 785 (1925). 110Id. at 508. 111 Lux v. Hoggin, 69 Cal. 255, 413, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 112 Tonkin v. Winzell, 27 Nev. 88, 99, 73 Pac. 593 (1903); Wright v. Phillips, 127 Oreg. 420, 426, 272 Pac. 554 (1928); Alexander v. Muenscher, 7 Wash. (2d) 557, 560, 110 Pac. (2d) 625 (1941). 113 Lux v. Haggin, 69 Cal. 255, 418, 4 Pac. 919 (1884), 10 Pac. 674 (1886). 1)4 Cederburgv. Dutra, 3 Cal. App. 572, 574-575, 86 Pac. 838 (1906). 115 West v. Taylor, 16 Oreg. 165, 170-171, 13 Pac. 665 (1887);Hofeldt v. Elkhorn Valley Drainage Dist., 115 Nebr. 539, 544, 213 N. W. 832 (1927). 116Harrington v.Detnaris, 46 Oreg. Ill, 117-118, 77 Pac. 603, 82 Pac. 14 (1904). 119 Hough v. Porter, 51 Oreg. 318, 415-416, 95 Pac. 732 (1908), 98 Pac. 1083 (1909), 102 Pac. 728 (1909). |