OCR Text |
Show ELEMENTS OF WATERCOURSE 51 With reference to the phrase "definite and permanent source of supply of water," frequently used by the courts as describing a necessary requisite of an irrigable stream, all that is meant is that there must be sufficient water carried by the stream at such intervals as may make it practicable to irrigate from or use the stream. A few other examples of judicial observations follow: Definite source.-The current (stream) consists of water from a definite source of supply.147 When water has a definite source, such as a spring, and takes a definite channel, it is a watercourse.148 Here a spring is singled out as a definite source. A spring that yields a stream flowing in a channel is an excellent and obvious example. Permanent source.-Water that appears on the surface in a diffused state with no permanent source of supply or regular course is valuable to no one and is not classified as a watercourse.149 Certain sloughs that had definite beginnings, definite channels with banks and bottoms and a definite ending in the main Fresno Slough, and a "permanent source" (San Joaquin River) from which they took water during certain seasons of the year, were held to be watercourses both in fact and in law.150 As a result, the contiguous lands were held to have riparian rights in the waters of the slough. The Montana Supreme Court has said a stream must be "fed from other and more permanent sources than mere surface water."151 The implication of this observation is that flows of diffused surface water are too short lived and unstable to themselves constitute watercourses, even when flowing briefly in natural depressions and in large quantity therein-which thus far is true-and therefore cannot be considered permanent sources of watercourses. However, as noted below (see "Diffused Surface Water"), this broad exclusion of diffused surface water from classification as a source of a watercourse is not justified, because part of the precipitation that falls on the slopes of a watershed-the ultimate source of its water supply-will reach the draining watercourses in the form of diffused surface water. Some interpretations of definiteness and permanence. -An extreme view of this requirement of a watercourse is that the supply must be permanent to the exclusion of rain and snow and diffused surface water generally; and perhaps the best known exponent of this view in the West is the decision of the South wMaricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 86, 4 Pac. (2d) 369 (1931). No criteria of definiteness are stated. 148Snyder v. Platte Valley Public Power & Irr. Dist., 144 Nebr. 308, 314, 13 N. W. 160 (1944). 149 Cooper v. Sanitary Dist. No. 1 of Lancaster County, 146 Nebr. 412, 419,19 N. W. (2d) 619(1945). 150Herminghaus v. Southern California Edison Co., 200 Cal. 81, 92, 252 Pac. 607 (1926). 151 LeMunyon v. Gallatin Valley Ry., 60 Mont. 517, 523,199 Pac. 915 (1921). |