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Show 58 CHARACTERISTICS OF WATERCOURSE arisen, however, about the nature of the channel that carries the water away from the spring. For example, in an early Nevada case, waters from springs that where tributary to a creek passed part way through the ground either as percolations or by unknown subterranean channels.181 As there was no uncertainty that these creek waters actually came from these springs, their partly uncertain course through the ground was held immaterial. Again, a stream that flows from a spring with regularity in a well-defined channel is held to be a watercourse,182 even though it enters the channel through an outlet in a marsh or swamp fed by living springs.183 In a Washington case, there was a curious conflict in the testimony as to the circumstances concerning the flow of water from a spring.184 Two-thirds of the witnesses testified that the spring waters flowed in a natural channel to, upon, and across a part of plaintiff's lands throughout the year; the other third thought there was no stream. However, plaintiff and his predecessors in interest had found sufficient water in the stream to divert it and thereby supply their domestic and other purposes. Furthermore, the trial judge found on visiting the premises that there was a well-defined stream for about 200 feet on plaintiff's lands. Even if water then disappeared into the ground, or if there was no mouth to the stream, the supreme court was of the opinion that a holding was required that a well-defined stream ran upon and over at least a part of plaintiff's lands. Some other typical cases recognizing the acceptability of springs as sources of a watercourse are given in the accompanying footnote.185 Waste and Seepage Waters The fact that waste and seepage waters contribute to and therefore are sources of supply of watercourses is not to be confused with questions of rights to the use of waste and seepage waters before they actually enter the stream channel, and with rights of use, recapture, and reuse after they have mingled with the waters already flowing there. Holdings of the courts on these claims of right are not uniform, as noted later in chapter 18. Disregarding for the present purpose, rights of ownership, use, recapture, and reuse, it has been noted in various decisions of western courts that with the establishment and expansion of irrigated areas, seepage into stream channels over a period of years develops substantial streams of water therein. Such 181 Strait v. Brown, 16 Nev. 317, 323-324 (1881). 1SiHotman v. Christensen, 73 Utah 389, 397, 274 Pac. 457 (1929). 1S3Pays v. Roseburg, 123 Wash. 82, 84-85, 211 Pac. 750 (1923). See Alexander v. Muenscher, 7 Wash. (2d) 557, 560, 110 Pac. (2d) 625 (1941). 184 Allison v. Linn, 139 Wash. 474, 477-478, 247 Pac. 731 (1926). 185In re German Ditch & Res. Co., 56 Colo. 252, 271, 139 Pac. 2 (!9l3);Rait v. Furrow, 74 Kans. 101, 106-107, 85 Pac. 934 (1906); Wright v. Phillips, 127 Oreg. 420, 426, 272 Pac. 554 (1928); Pecos County W.C. & I. Dist. No. 1 v. Williams, 111 S. W. (2d) 503, 504 (Tex. Civ. App. 1954, error refused n.r.e.); Hollett v. Davis, 54 Wash. 326, 329, 103 Pac. 423 (1909). |