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Show ELEMENTS OF WATERCOURSE 45 but the testimony shows that there is a connected stream, it is held that there is one watercourse.118 In this case, the referee had found that Johnson Creek was a natural watercourse, and that the bed of the stream was of such character that the water rose and sank along its course, coming to the surface with the bedrock, and sinking in other sections where the soils were porous. In the spring during the snow runoff, water ran on the surface the entire length of the stream. If that finding was correct, said the court, "then Johnson Creek is a stream, even though it does not flow continuously and at times is dry in places." A prior appropriator will be protected against material interference with his rights to such flow under these or comparable circumstances.119 Continuity of a watercourse is not broken because a stream enters a meadow in one channel and leaves it in another, there being no definite channel across the meadow-simply low depressions and partial channels in which water flows-but the evidence being uncontradicted that the inlet channel is the source of supply of the outlet channel.120 An appropriator on the outlet will be protected against the effects of a junior diversion of the inlet. Nor is continuity broken where the flow from springs leaves its channel and proceeds under the surface of the ground for one-half mile to the surface stream to which it is tributary.121 In these several cases, the essential feature is continuity of the flow of water-either on the surface or partly on and partly under the surface-not of character of the channel. Some Local Situations Southwestern arroyos.-The term "arroyo" is applied in the Southwest to a channel, worn by the erosive action of running water-often torrential-but dry much or most of the time. Where such an arroyo emerges from the hills, it may have a wide bed cut some feet or yards below the surrounding lands. The usually "dry arroyo" may suddenly become bank full with the runoff from a torrential rain or cloudburst; it may run swiftly thus for a short time; and after the passage of the flood it may dry gradually and again remain quiescent for days or weeks or even for many months. In fact, there are comparatively few streams in the smaller valleys of the southwestern region that flow much of the time. The significance of these spasmodic occurrences is discussed below under "Source of Supply."122 It may be noted here that in view of the topographic and meteorological conditions of the region, the courts of New Mexico and Arizona accept the typical arroyo emerging upon the plains from high ground as the channel of a watercourse. nsIn re Johnson Creek, 159 Wash. 629, 630, 294 Pac. 566 (1930). 119 See Barnes v. Sabron, 10 Nev. 217, 236-239 (1875). 120Anderson Land & Stock Co. v.McConnell, 188 Fed. 818, 829-831 (C.C.D. Nev. 1910). 121 Strait v. Brown, 16 Nev. 317, 323-324 (1881). 122 Under "Source of Supply-Definiteness and Permanence," the article cited in "Agricul- tural Research" for August 1959 well illustrates this general situation. |
