OCR Text |
Show 540 DIFFUSED SURFACE WATERS spread over the surface of the ground without being collected into a definite body of water17 or into a definite channel having the characteristics of a water- course.18 On the contrary, in a 1950 case, the Nebraska Supreme Court quoted a characterization in one of its earlier decisions to the effect that "The term 'surface water' includes such as is carried off by surface drainage, that is, drainage independently of a water-course * * *."19 In another case, a survey showed that while there was no regular watercourse, there were elongated depressions or drainways showing natural drainage of the water.20 In still another, the mere fact that surface or swamp water accumulated on a tract of land and moved across it by following the lowest contours did not, under the evidence of the case, support a finding that there was a natural watercourse at that location.21 It is not necessary that diffused surface waters be spread broadly over the land at all times.22 They may include errant water passing through a low depression, swale, or gulley.23 They may be occasioned by unusual precipita- tion "falling over the entire surface of the tract of land, and filling up low and marshy places, and running through adjacent lands and into hollows and ravines which are in ordinary seasons destitute of water and dry."24 In an Alaska case decided in 1963, the evidence showed that water normally flowed through a slough only during the spring thaw and on infrequent inSan Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392, 398,188 Pac. 554 (1920); casual, vagrant, diffused over the ground, Dahlgren v. Chicago, M. & P. S. R.R., 85 Wash. 395, 405, 148 Pac. 567 (1915); accumulating and spreading in consequence of heavy precipitation, Miller v. Eastern R.R. & Lumber Co., 84 Wash. 31, 34-35, 146 Pac. 171 (1915). 18 Week v. Los Angeles County Flood Control Dist., 80 Cal. App. (2d) 182, 193,181 Pac. (2d) 935 (1947); no definite course or defined channel, Dahlgren v. Chicago, M. & P. S. R.R., 85 Wash. 395, 405, 148 Pac. 567 (1915); Cass v. Dicks, 14 Wash. 75, 77, 44 Pac. 113 (1896); not a running stream; the water in the canyon came entirely from rainfall in the surrounding hills, Denver, Texas & Fort Worth R.R. v. Dotson, 20 Colo. 304, 305, 38 Pac. 322 (1894); no permanent stream, occasional flow for brief periods, Wyoming v. Hiber, 48 Wyo. 172, 187-188, 44 Pac. (2d) 1005 (1935); Thorpe v. Spokane, 78 Wash. 488,489,139 Pac. 221 (1914). 19Courter v. Maloley, 152 Nebr. 476, 485,41 N.W. (2d) 732 (1950). hoLemer v. Koble, 86 N.W. (2d) 44, 47 (N. Dak. 1957). 21 Harmon v. Gould, 1 Wash. (2d) 1, 8, 94 Pac. (2d) 749 (1939). 22 Such waters resulting from an extraordinary rainfall flowed in a sheet across plaintiffs almost level farm. Robinson v. Central Nebr. Pub. Power & Irr. Dist., 146 Nebr. 534, 543, 20 N.W. (2d) 509 (1945). As a result of a very heavy rain, "the water ran in a sheet 500 feet wide from one farm to the other." Hengelfelt v. Ehrmann, 141 Nebr. 322, 327, 3 N.W. (2d) 576 (1942). "Horton v. Goodenough, 184 Cal. 451, 453, 194 Pac. 34 (1920); McManus v. Otis, 61 Cal. App. (2d) 432, 439440, 143 Pac. (2d) 380 (1943); Sun Underwriters Ins. Co. of N. Y. v. Bunkley, 233 S.W. (2d) 153, 155-156 (Tex. Civ. App. 1950, error refused.) 2AMader v.Mettenbrink, 159 Nebr. 118,127, 65 N.W. (2d) 334 (1954). |