Water-Course

This term is applied to the flow or movement of the water in rivers, creeks, and other streams. A water-course is a stream of water flowing in a definite channel, having a bed and sides or banks and discharging itself into some other stream or body of water. Hutchinson v. Ditch Co., 16 Idaho 484, 101 Pac. 1059, 133 Am. St. Rep. 125. The flow need not be constant, but must be more than mere surface drainage occasioned by extraordinary causes; there must be substantial indications of the existence of a stream which is ordinarily a moving body of water. Id.; Barnes v. Sabrou, 10 Nev. 217. There must be a supply which is permanent in the sense that similar conditions will always produce a flow of water in the same channel, and that the conditions recur with some degree of regularity, so that they establish and maintain for considerable periods of time a running stream; Mann v. Mining Co., 49 App. Div. 454, 63 N. Y. Supp. 752. Whenever surface water flows in one continuous well marked channel it becomes a water-course, if this flow becomes regular each season; Borman v. Blackmon, 60 Or. 304, 118 Pac. 848; or if the course has reasonable limits as to width; Chicago, B. & Q. R. Co. v. Board of Sup’rs, 182 Fed. 291, 104 C. C. A. 573, 31 L. R. A. (N. S.) 1117. The essential characteristics of a watercourse are a channel consisting of a well defined bed and banks, and a current of water; Lessard v. Strain, 62 Wis. 112, 22 X. W. 284, 51 Am. Rep. 715; Razzo v. Vami, 81 Cal. 289, 22 Pac. 848; Barnes v. Sabron, 10 Nev. 217; Board of Com’rs of Shelby County v. Castetter, 7 Ind. App. 309, 33 N. E. 9S6, 34 N. E. 687. The rule is that in order to have a watercourse there must be a channel; it has even been held that where there was a channel there was a water-course, although it carried no water except in times of heavy rains aud of melting snows, thus forming what is called a torrential stream; York v. Davider to a lower level for limited periods during the melting of snow, or during or soon after the fall of rain, through hollows or ravines, which at other times are dry; Hoyt v. Hudson, 27 Wise. 656, 9 Am. Itep. 473. Where the water flows merely over the low land, a bog or a slough, it is not a watercourse; Chicago, K. & W. R. Co. v. Morrow, 42 Kan. 339, 22 Pac. 413; nor where it merely oo&es from a spring through soft spongy ground; /Meyer v. Power Co., 8 Wash. 144. 35 Pac. 601. The bed. which is a definite and commonly a permanent channel, is the characteristic which distinguishes the water of a river from mere surface drainage flowing without definite course or certain limits, and from water percolating through the strain of the earth. The banks of a water-course are the elevations which confine the w’aters to their natural channel when they rise; Howard v. Inge rso 11, 13 llow. (L\ S.) 3S1, 14 L. Ed. 189; People v. Madison County, 125 111. 9, 17 N. E. 147. The water of a water-course must have a current. The flow of the water must usually be in one direction; 1 B. & Ad. 289; and by a regular channel having both a source and a mouth; Chamberlain v. Hemingway, (53 Conn. 1, 27 Atl. 239, 22 L. II. A. 45, 38 Am. St. Rep. 330. The controlling distinction between a watercourse and a pond or lake is that in the former case the water has a natural motion or a current, while in the latter the water is, in its natural state, substantially at rest. And this is so independently of the size of the one or of the other; Ne-pee-uauk Club v. Wilson, 90 Wis. 290, 71 N. W. (501. If the current continues, the mere fact that the stream spreads out does not change its character as a water-course; Macomber v. Godfrey, 108 Mass. 219, 11 Am. Rep. 349. A hollow or ravine without a permanent flow of water is not a water-course; Los Angeles C. Ass'u v. Los Angeles, 103 Cal. 401, 37 Pac. 375; ne Llier is a swale or swamp or bog; Sanquinetti v. Pock, i3G Cal. 406, G9 Pac. 98, 89 Am. St. Rep. 109; Hough v. Porter, 51 Or. 318, 95 Pac. 732, 98 Pac. 1083, 102 P,ac. 728. It may be if water flows into it throughout the year from springs; Maxwell v. Shirts, 27 Ind. App. 529, 01 N. E. 754, 87 Am. St. Rep. 2G8; or where there is a flow of surface-w’ater from rains and melting snows at regular Seasons and such has been iminemorially the case; Gibbs v. Williams, 25 Kan. 214, 37 Am. Rep. 241; Mace v. Mace, 40 Or. 580, 07 Pac. 600, 68 Pac. 737. A stream does not cease to be a water-course and become mere surface water, because at certain points it spreads over a level meadow several rods in width, and flows for a distance without defined banks before flowing again into a definite channel; West v. Taylor, Cole v. R. Co., 20 Okl. 227, 94 Pac. 540, 15

A natural stream of water fed from permanent or periodical natural sources and usually flowing in a particular direction in a defined channel, having a bed and banks or sides, and usually discharging itself into some other stream or body of water. Los Angeles v. Pomeroy, 124 Cal. 597, 57 Pac. 587; Chamberlain v. Hemingway, 63 Conn. 1, 27 Atl. 239, 38 Am. St. Rep. 330; Ribordy v. Murray, 177 III. 134, 52 N. E. 325; Rait v. Furrow, 74 Kan. 101, 85 Pac. 934, 6 L. R. A. (N. S.) 157 ; Dickinson v. Worcester, 7 Allen (Mass.) 19; Earl v. De Hart, 12 N. J. Eq. 284, 72 Am. Dec. 395; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St Rep. 727. There must be a stream usually flowing in a particular direction, though it need not flow continually. It may sometimes be dry. It must flow in a definite channel, having a bed, sides, or banks, and usually discharge itself into some other stream or body of water. It must be something more than a mere surface drainage over the entire face of a tract of land, occasioned by unusual freshets or other extraordinary causes. It does not include the water flowing in the hollows or ravines in land, which is the mere surface-water from rain or melting snow, and is discharged through them from a higher to lower level, but which at other times are destitute of water. Such hollows or ravines are not. in legal contemplation, water-courses. Hoyt v. Hudson, 27 Wis. 656, 9 Am. Rep. 473 ; San-guinetti v. Pock. 136 Cal. 466. 69 Pac. 98, 89 Am. St. Rep. 169; Luther v. Winnisimmet Co.., 9 Cush. (Mass.) 171; Pyle v. Richards, 17 Neb. 180, 22 N. W. 370. But if the topography of the surrounding country is such that water accumulates in great quantities after heavy rains or at the season of melting snows, and descends periodically through a well-defined channel which the force of the water bas made for itself, and which is the accustomed channel through which it flows and has always flowed, such channel is to be deemed a natural water-course. Kelly v. Dunning, 39 N. J. Eq. 482; Earl v. De Hart, 12 N. J. Eq. 280. 72 Am. Dec. 395; Simmons v. Winters, 21 Or. 35, 27 Pac. 7, 28 Am. St. Rep. 727.

— Natural water-course. A natural stream flowing in a defined bed or channel; one formed by the natural flow of the water, as determined by the general superficies or conformation of the surrounding country, as distinguished from an "artificial" water-course, formed by the work of man, such as a ditch or canal. See Barkley v. Wilcox, 86 N. Y. 140, 40 Ain. Rep. 5i9; Hawley v. Sheldon, 64 Vt. 491, 24 Atl. 717, 33 Am. St. Rep. 941; Porter v. Armstrong, 129 N. O 101, 39 S. E. 799.

A stream of water, usually flowing in a defined channel, and discharging itself into some other stream or other body of water. Water-mark: means, when referred to as a boundary, the mark to which water ordinarily ascends or descends. Water-power: the fall in a stream in its natural state. Water-measure: a measure greater than Winchester measure by about three gallons in the bushel.

In English law. Water-bailiff: an officer in port towns, whose duties in general relate to the searching of ships.

In old English law. Water-gang: a passage for water; a trench to carry a stream of water, such as were usually made in sea-walls, to drain water out of the marshes. Water-gavel: a gavel or rent paid for fishing in, or other benefit received from, some river or water.

In Saxon and old English law. Water-ordeal: the ordeal or trial by water, which was by plunging the bare arm up to the elbow in boiling water, or by casting the person suspected into a river or pond of cold water.