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Show ELEMENTS OF WATERCOURSE 55 run down the creek in sufficient quantity and with such regularity and frequency as to be valuable for irrigation, and that people for years have been and now are successfully irrigating from it. The facts as to bed, banks, and permanency of source or water supply are mere evidentiary facts that a stream can be used for irrigation or water right purposes. When the fact of utility is conceded or established, as it is here, said the court, the stream is one to which water rights attach, regardless of variations from the ideal stream of physiographers and meteorologists. The minority viewpoint.-The South Dakota cases that rejected the water sources of Ash Coulee as impermanent represent the extreme point of view with respect to melting snow and rainfall as sources of supply of water- courses.170 (See "Source of Supply," above.) Admittedly, the water supplies in question were neither large nor did they last long into the summer, but this is a phenomenon not at all uncommon in the West. The two cases contain borderline decisions which might easily have gone the other way. Localized precipitation and runoff.-As, the field narrows from overall concepts of watersheds and their drainage stream systems to more localized situations, standards of definiteness and permanence tend to become more exacting. The South Dakota borderline cases noted immediately above are on the physical borderline also. Thus, there is the early observation of the Nevada Supreme Court distinguishing occasional bursts of water in localized areas from snows on the mountain watersheds, and there is also the emphasis placed in Oklahoma upon heavy rain and large bodies of snow,171 both noted above in discussing the majority viewpoint. The concept as to localized sources is embodied in two decisions of the Nebraska Supreme Court rendered in the 1890's.172 Both involved interception of water by railroad embankments. In each, an essential question of law was whether the law of watercourses or that of diffused surface waters should be applied. In the Morrissey case, existence of the water in litigation was traceable directly to falling rains, when there were extraordinary freshets. It was not shown that in its undiverted course, the water originated from or returned to Yankee Creek. Its course was along the valley, but not as a part of the stream or in any defined watercourse of its own. The supreme court agreed with the trial court that this was diffused surface water. The jury in the Town case believed that there was a well-defined channel for the drainage of rainfall, melting snow, or diffused surface water only, although 170Benson v. Cook, 47 S. Dak. 611, 613-617, 201 N. W. 526 (1924); Terry v.Heppner, 59 S. Dak. 317, 319-320, 239 N. W. 759 (1931). 171 Barnes v. Sabron, 10 Nev. 217, 236-237 (1875); Chicago, R.I. & P.Ry. v. Groves, 20 Okla. 101,117-118, 93 Pac. 755 (1908). 172Morrissey v. Chicago, B. & Q.R.R., 38 Nebr. 406, 430-431, 56 N. W. 946 (1893); Town v. Missouri Pac. Ry., 50 Nebr. 768, 772-774, 70 N. W. 402 (1897). |