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Show 78 CHARACTERISTICS OF WATERCOURSE "although it is true to say that much contrariety and confusion exist in the ad- judged cases as to when it is applicable, some cases extending the rule so far as to virtually render the limitation inoperative, others extending the limitation to such a degree as really to cause it to abrogate the rule itself." The distinction, rather widely recognized at one time, has become of less importance-perhaps because of the difficulty in making the distinction, and the growing tendency to call a high proportion of all floods "usual and ordinary."287 In various jurisdictions, however, it still prevails. Distinctions Ordinary floods.- Floods or freshets that occur annually with practical regularity cannot be said to be unprecedented or extraordinary.288 In a Nebraska case, the evidence disclosed that floods, like the one in instant litigation, were likely to occur annually, hence did not conform to the concept of a flood that is not only extraordinary but unprecedented and not reasonably to be foreseen.289 If floods regarded as unusual have actually occurred again and again even at irregular intervals, it is only reasonable to anticipate that they will recur in the future.290 Decisions of the California Supreme Court with respect to major streams rising in the Sierra Nevada and flowing down into the San Joaquin Valley have been uniformly to the effect that the high waters thereof were flows that were expected annually and hence not unusual, extraordinary, or unexpected.291 In an early case, the Supreme Court of California observed that "Nor can that flow be said to be an extraordinary flood which can be counted on as certain to occur annually, and to continue for months."292 In an early Texas case, it was held that a defense that floods not provided for have occurred only at long intervals will not avail a party who knows that an unprecedented inundation has occurred more than once and for that reason may occur again.293 On the Pacific Coast, when discussing a heavy rainfall of flood proportions in recent years, the Oregon Supreme Court said that:294 287See discussions of the distinction in Annots., 16 A.L.R. 629, 634 (1922), 23 A. L. R. (2d) 750, 757 (1952). *8*Longmire v. Yakima Highlands In. & Land Co., 95 Wash. 302, 305-306,163 Pac. 782 (1917). See Still v. Palouse In. & Power Co., 64 Wash. 606, 609-610, 117 Pac. 466 (1911). 28vClark v. Cedar County, 118 Nebr. 465,468-470, 225 N.W. 235 (1929). 290Kansas City v. King, 65 Kans. 64, 66-67, 68 Pac. 1093 (1902). Repetition even at uncertain intervals does not take the flood out of the classification as "ordinary": Jefferson v. Hicks, 23 Okla. 684, 686-687,102 Pac. 79 (1909). 291 Hutchins, Wells A., "The California Law of Water Rights," p. 26 (1956). 292 Heilbron v. Fowler Switch Canal Co., 75 Cal. 426, 432, 17 Pac. 5 35 (1888). 293 Gulf, C. & S. F. Ry. v.Pomeroy, 67 Tex. 498,502, 3 S. W. 722 (1887). 294Schweiger v. Solbeck, 191 Oreg. 454, 464, 230 Pac. (2d) 195 (1951), quoted with approval in Wellman v.Kelley, 197 Oreg. 553,561, 252 Pac. (2d) 816 (1953). |