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Show 100 CHARACTERISTICS OF WATERCOURSE A natural pond is really a small lake. The Nebraska Supreme Court quotes with approval a statement that although a distinction is sometimes made between lakes and ponds-the term "lake" connoting a large body of water, and "pond" connoting a small one ordinarily containing considerable aqiiatic growth-nevertheless this distinction is based chiefly on the size of the body of water and is not essential for legal purposes.406 These natural bodies of water, with defined boundaries, belong in the same legal classification. Lakes and ponds are distinguished from marshes in being definite bodies of standing water, rather than areas of soft, low-lying, water-logged land which may or may not have water standing in places on the surface.407 The distinction obviously may be close under some circumstances. As noted above (see "Elements of Watercourse-Other Factors-Relation of Watercourse to Connected Sources of Water Supply"), most western lakes are clearly connected with surface stream channels. On the other hand, there are lakes and ponds with no visible tributary channels or outlet channels. They may be fed from precipitation upon the water surface, from diffused surface waters, and from underground sources; and they discharge water into the atmosphere and in many cases into the ground. They may constitute definite sources of water supply to which rights exist or may be acquired independently of rights to other sources of supply. A Washington case, De Ruwe v. Morrison, began as an action to compel neighbors to remove a dam, erected on their own property, which plaintiffs contended obstructed a natural watercourse and flooded their land at certain seasons.408 In a decision rendered by a divided court, it was held that the lake basin in litigation was not a natural watercourse; that the overflow outlet was not a true outlet in the typical situation in which water enters a lake at one point and flows out at another, thus preserving the continuity of a watercourse. Here the inflow came to rest in the lake and escaped as outflow only at certain seasons of the year and even then shortly disappeared into a sink hole. The waters that periodically inundated the basin were classed as "flood and surface waters." Standing alone, the decision on this point in De Ruwe v. Morrison is an extreme one insofar as it purports to hold that a closed lake outlet determines the classification of waters that come to rest in alakebed. Compare the North Dakota case of Froemke v. Parker, in which the court held that when diffused 406 Block v. Franzen, 163 Nebr. 270, 276-277, 79 N. W. (2d) 446 (1956), quoting from Restatement of Torts § 842 p. 324 (1939). 407 Kinney, C. S., supra note 405, § 317. 408De Ruwe v. Morrison, 28 Wash. (2d) 797, 805, 810, 184 Pac. (2d) 273 (1947). Judgment of dismissal appealed and affirmed. Plaintiffs invoked the rule relative to natural watercourses and relied on their riparian rights thereunder. Under the facts, the supreme court held that appellants had no cause of action on this theory. The supreme court held also with the trial court that the lake was not a natural watercourse. The waters in the basin were held to be "flood and surface waters," against which the de- fendants had the right to protect their property. |
