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Show ELEMENTS OF WATERCOURSE 47 However, the South Dakota Supreme Court stated with respect to a depression in Harding County, in the northwestern corner of the State, that: "Ash coulee, as the name implies, is a long shallow draw."129 A few examples follow. (See also "Bed and Banks or Sides-What constitutes bed and banks," above.) A depression in Reagan County, Texas, one-fourth to one-half mile wide and several miles long, draining a considerable area, but in which water flowed only after "a good rain," was held to lack under the testimony any of the essential characteristics of a watercourse. According to the court, "it would seem that Garrison Draw is just a wide valley; a typical West Texas draw."130 Adamson Draw in Johnson County, Wyoming, was said to be "just a swale," a "small water drainage" for local precipitation, and was held to be not a watercourse. The bottom was "well grassed," there was no evidence of well-defined banks or creek channel; and it was easily crossed by a vehicle almost anywhere.131 This is not to imply that a draw is to be completely dissociated from the category of watercourses. In the two examples just noted, the physical features of the draws in question did not meet the specifications of a watercourse channel. Had they done so, with the requisite elements of source and streamfiow-or had there been an accepted channel running along their beds, no matter how wide the draws-classification as watercourses might well have resulted. It is true that the South Dakota Supreme Court in Benson v. Cook stated that extending throughout the length of Ash Coulee, in Harding County in the northwestern part of the State, is a meandering depression that had been worn by the action of running water, with a bed and banks forming a continuous channel down which water ran when there was water to run-"the same" being "true of practically every other coulee or dry draw in the land." But the court stated that the water flowing down the coulee had never lost its character as "mere surface water."132 In dealing with the question of source of supply, the holding in this case is an extreme one. In the author's opinion, the streamflows in this case and in Terry v. Heppner decided 7 years later133 could better have been classed as appropriable waters of watercourses. (See "Source of Supply," below.) The statutes of South Dakota make provision for obtaining rights to the use of water of minor streamflows under special procedure.134 It applies to any dry draw not exceeding 160 acres in drainage area for any purpose, or to any dry draw or watercourse for livestock purposes; "dry draw" being any ravine or watercourse not having an average daily flow of at least 0.4 cubic foot per 129 Benson v. Cook, 47 S. Dak. 611, 613, 201 N. W. 526 (1924). 130 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). 131 Wyoming v. Hiber, 48 Wyo. 172, 178-179, 187-188, 44 Pac. (2d) 1005 (1935). 132 Benson v. Cook, 47 S. Dak. 611, 613, 616-617, 201 N. W. 526 (1924). 133 Terry v. Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931). 134 S. Dak. Comp. Laws Ann. § § 46-1-6(3) and 464-1 to 46-4-8 (1968). |