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Show COLLATERAL QUESTIONS RESPECTING WATERCOURSES 85 or diffused surface waters.323 (See "Overflows not Separated from the Stream- The situation in Washington," above.) Had they never left the flood plain of the original stream, these waters would have remained part of the watercourse.324 Joinder with Another Watercourse Some authority exists for classification of overflow floodwater in the unusual situation in which it separates completely from the original stream and joins another one. The Oklahoma Supreme Court held that waters that overflowed the banks of a stream and pursued "a general course back into the same water course, or into another watercourse, although they do not follow a channel with well-defined banks," did not become diffused surface water but continued to be floodwaters of the watercourse.325 The same rule was applied by the Nebraska Supreme Court to overflow waters that separated completely from Omaha Creek and followed a slight natural depression, in a definite and well-defined course, to an outlet in a lake or lakebed about 2 miles away.326 COLLATERAL QUESTIONS RESPECTING WATERCOURSES Overflows: Rights of Landowners Rights of landowners with respect to flood overflows are in two categories: (1) The right to protect their lands from inundation; and (2) the right to have the overflows occur naturally for beneficial use. The first case thus involves avoidance and riddance of the floodwaters; the second, their unobstructed overflow for natural irrigation of the contiguous land. Protection of Lands Against Inundation The rules with respect to the right of a landowner to embank against flood overflows for the protection of his land vary from one western jurisdiction to another. Variations relate to distinctions between so-called ordinary and extraordinary floods; to floodwaters in the streamway and floodwaters escaped from it; and to the right to protect lands and the limitations upon this right. The general western situation can best be described by noting briefly the rules in several of the States which, in the aggregate, include probably most of the important points that have been litigated in the high courts. 323Harvey v. Northern Pacific Ry., 63 Wash. 669, 674-677, 116 Pac. 464 (1911);Morton v.Hines, 112 Wash. 612, 617, 192 Pac. 1016 (1920). 324 See Sund v. Keating, 43 Wash. (2d) 36, 41-42, 259 Pac. (2d) 1113 (1953). 325 Jefferson v. Hicks, 23 Okla. 684, 692-693, 102 Pac. 79 (1909), restated in the syllabus by the court in Franks v. Rouse, 192 Okla. 520, 137 Pac. (2d) 899 (1943). 326Murphy v. Chicago, B. & Q. R.R., 101 Nebr. 73, 77-80, 161 N. W. 1048 (1917). Twenty-five years later, in Hengelfelt v. Ehrmann, 141 Nebr. 322, 327, 3 N. W. (2d) 576 (1942), this court quoted from one of its previous decisions to the effect that overflow water that escapes from the banks of a running stream, "and that does not return to its banks, nor find its way to another stream or watercourse," is diffused surface water. |
