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Show LAKES AND PONDS 99 LAKES AND PONDS Physical Characteristics Lakes and ponds are compact bodies of water, with defined boundaries. Perceptible currents may or may not be flowing through these bodies of water, but in contrast to streams, they are substantially at rest. A necessary characteristic of a lake is a reasonably permanent existence, even though it may dry up in periods of drought.401 Usually, currents of water flowing through a lake are not perceptible, even where the lake is connected with a stream system, except of course in the inlet and outlet regions. That a current or flow of water is one of the essential elements of a watercourse has been stated heretofore (see "Elements of Watercourse-Stream").402 The Arizona Supreme Court has said, in this connection, that:403 This element of a current is one of the controlling distinctions between a river or stream, and a pond or lake. In the former case the water has a natural motion or current, while in the latter the water is in its ordinary state substantially at rest, with its surface perpendicular to a radius of the earth. The exit of a lake is a river or stream, having a current, but the lake itself has substantially none. * * * Although the weight of authority appears to be that the controlling distinction between a lake and a watercourse is that in the former the water is substantially at rest whereas in the latter it is in perceptible motion,404 nevertheless the existence or nonexistence of a current does not necessarily determine the classification of the body of water in question.405 of different parcels of land conduct water across the same in an artificial channel, and do not define their respective interests in the water, their reciprocal rights thereto are to be measured and determined as if they were riparian owners upon a natural stream * * * ." Cottel v. Berry, 42 Oreg. 593, 596, 72 Pac. 584 (1903). This comment was dictum in view of the fact that the rights of the parties in this case were not determined by rules governing riparian owners on a natural stream, but by an agreement they had made regarding disposition of water developed by a certain ditch. The Kansas Supreme Court says that: "The diversion of a stream by substituting an artificial channel for part of a natural one, by common consent, running in the same general direction, which has existed for a considerable time, may have the characteristics of a watercourse, to which riparian rights would attach." Hornor v. Baxter Springs, 116 Kans. 288, 290, 226 Pac. 779 (1924). 401 Block v. Franzen, 163 Nebr. 270, 277, 79 N. W. (2d) 446 (1956). See Froemke v. Parker, 41 N. Dak. 408, 415, 171 N. W. 284 (1919). 402 See De Ruwe v. Morrison, 28 Wash. (2d) 797, 810, 184 Pac. (2d) 273 (1947). w*Maricopa County M.W.C. Dist. v. Southwest Cotton Co., 39 Ariz. 65, 86, 4 Pac. (2d) 369(1931). 404Froemke v. Parker, 41 N. Dak. 408, 415, 171 N. W. 284 (l919);Block v. Franzen, 163 Nebr. 270, 277, 79 N. W. (2d) 446 (1956). 405 See Kinney, C. S., "A Treatise on the Law of Irrigation and Water Rights," 2d ed., vol. 1, § 294 (1912). Compare Wiel, S. C, "Water Rights in the Western States," 3d ed., vol. 1, § 346(1911). |