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Show 46 CHARACTERISTICS OF WATERCOURSE The opinion in a case that was appealed to the United States Supreme Court from the Territorial Supreme Court of New Mexico123 was written by Justice Brewer, who formerly had been on the bench of the Kansas Supreme Court. In writing the New Mexico opinion, the justice was doubtless influenced by his previous Kansas experience with watercourse and diffused surface water classifications.124 In any event, he ignored the significance of the essential differences in nature's handling of the runoff from rainfall on Kansas prairies and that from cloudbursts in the mountains of New Mexico. In each of the above-cited cases, despite the physical contrasts, he held the channel to be simply a passageway for diffused surface water. From two subsequent decisions of the New Mexico Supreme Court, it may be gathered that the court has never approved of the high Court's classification of the arroyos in the Walker case. In 1912, the New Mexico court "adroitly distinguished" the highest Court's decision; in 1952, it rejected the decision completely as authority in the jurisdiction of this important matter, declaring that it was ill suited to conditions in the State and would no longer be followed.125 The legislature of New Mexico is in accord.126 The Arizona Supreme Court, in an opinion that contained no description of the channel in litigation, indicated its approval of the concept that a ravine or wash is a natural stream or watercourse where precipitation on adjacent hills flows down through the ravine in a well-defined channel at irregular intervals.127 Draws and coulees.-The term "draw" is used in various parts of the West to indicate a depression through which water drains. As contrasted with a canyon or ravine, a draw in many instances is characteristically wide and shallow, without steeply sloping sides. "Coulee" has been defined as a deep gulch or ravine formed by rainstorms or melting snow, often dry in summer.128 123 Walker v. New Mexico & S.P.R.R., 165 U.S. 593, 599-602 (1897). 124 See Gibbs v. Williams, 25 Kans. 214, 215-216, 221 (1881). 12SJaquez Ditch Co. v. Garcia, 17 N. Mex. 160, 162-164, 124 Pac. 891 (1912);Martinez v. Cook, 56 N. Mex. 343, 348-351, 244 Pac. (2d) 134 (1952). In the latter case, at 349-350, the court emphasized that New Mexico is a State with an enormous number of arroyos that serve as drainageways in rainy seasons but are dry at other times; and that a rule that to constitute a watercourse, water must be carried in the channel throughout the year or most of the time is not suited to local conditions. The court added that "Likewise, the holding in the Walker case that because a deep arroyo terminated in the flat country although the water thereafter traveled to a river through defined channels, that dams may be thrown across such channels and the water cast back on higher lands, is ill suited to conditions in this State and the case will not longer be followed." 126 A watercourse is defined by statute as any channel-including arroyo-having definite banks and bed with visible evidence of the occasional flow of water: N. Mex. Stat. Ann. § 75-1-1 (1968). 127 Globe v. Shute, 22 Ariz. 280, 289, 196 Pac. 1024 (1921). 128 "The American Heritage Dictionary of the English Language," Hough ton Mifflin Co., 1969. |