This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
- (a) General considerations. The judicial definitions of a natural watercourse are by no means harmonious, but it may be stated, in a general way, that a natural watercourse is a natural stream, flowing in a defined bed or channel with banks or sides, and having a permanent, or quasi permanent, source of supply, although the flow may be at times diminished or temporarily suspended in times of drought or at the dry season of the year.31
28b. Post, Sec. 339(d), note 72.
29. Bryant v. Lefever, 4 C. P. Div. 172; Webb v. Bird, 13 C. B. (N. S.) 841; Honsel v. Conant, 12 111. App. 259; Oldstein v. Firemen's Building Ass'n, 44 La. Ann. 492; Rideout v. Knox, 148 Mass. 368, 2 L. R. A. 81, 12 Am. St. Rep. 560, 19 N. E. 390; Letts v. Kes-sler, 54 Ohio St. 73, 40 L. R. A. 177, 42 N. E. 765; Knoblegard v. Hale, 60 W. Va. 37, 116 Am. St. Rep. 868, 9 Ann. Cas. 732, 53 S. E. 593.
30. Post, Sec. 351.
31. See Angell, Water Courses, Sec. 4; Boone v. Wilson, 125 Ark. 364, 188 S. W. 1160; Sierra County v. Nevada County, 155 Cal. 1, 99 Pac. 371; Ventura Land & Power Co. v Meiners, 136 Cal. 284, 89 Am. St. Rep. 128, 68 Pac. 818; Tampa Water Works Co. v. Cline, 37 Fla. 586, 33 L. R. A. 376, 53 Am. St. Rep. 141, 20 So. 780; Hutchinson v. Wats:n Slough Ditch Co., 16 Idaho, 484, 133 Am. St. Rep. 125, 101 Pac. 1059; Evans-ville, Mt. C. & N. Ry. Co. v. Scott, - Ind. App. -, 114 N. E. 649; Rait v. Furrow, 74 Kan. 101, 6 L. R. A. N. S. 157, 10 A. & E. Ann. Cas. 1044, 85 Pac. 934; Ja-quez Ditch Co. v. Garcia, 11 N. M. 160, 124 Pac. 891; Mille v. Marriott, 54 Okla. 179, 149 Pa<
The cases are ordinarily to the effect thai a flow of water through a swale or ravine, which takes place whenever a rainfall occurs, and then ceases until the next rainfall, is not properly a watercourse, it lacking any element of permanence.32 In a few states, however, a contrary view has been asserted or indicated.33 This latter view appears to be the result, to some extent, of a failure to distinguish between the stream of water itself, to which the expression "water course" is properly applicable, and the channel in which the stream flows, and as a matter of fact the cases in which this view is asserted ordinarily say, not that the water when it flows through the swale or ravine constitutes a watercourse, but that the swale or ravine itself is a water course. They, in effect, dispense with the requirement of a permanent or quasi permanent flow of water, as a constituent of a water course, and regard as sufficient a permanent channel in which water occasionally flows.
A natural watercourse would seem not to lose its character as such by reason of the fact that it is, by human intervention, caused to flow, in part or in whole,
1164; Simmons v. Winters, 21 Ore. 35, 28 Am. St. Rep. 727, 27 Pac. 7; Miller v. Eastern Railway & Lumber Co., 84 Wash. 31, 148 Pac. 171; Neal v. Ohio River R. Co., 47 W. Va. 316, 34 S. E. 914; Hoyt v. Hudson, 27 Wis. 656.
32. Los Angeles Cemetery Ass'n v. Los Angeles, 103 Cal. 461, 37 Pac. 375; Galbreath v. Hopkins, 159 Cal. 297, 113 Pac. 174; Robinson v. Shanks, 118 Ind. 125, 20 N. E. 713; Carroll County v. Bailey, 122 Ind. 46, 23 N. E. 672; Chicago K. & W. R. Co. v. Morrow, 42 Kan. 339, 22 Pac. 413; Morrison v. Bucksport & B. R. Co., 67 Me. 353; Gregory v. Bush, 64 Mich. 37, 8 Am. St. Rep.
797, 31 N. W. 90; Benson v. Chicago & A. R. Co., 78 Mo. 514; Town v. Missouri Pac. R. Co., 50 Neb. 768, 70 N. W. 402; Barnes v. Sabron, 10 Nev. 217; Bowlsby v. Speer, 31 N. J. L. 354, 86 Am. Dec. 216; Jeffers v. Jeffers, 107 N. Y. 650, 14 N. E. 316; Simmons v. Winters, 21 Ore. 35, 28 Am. St. Rep. 727, 27 Pac. 7; Hoefs v. Short, - Tex. Civ. App. -, 190 S. W. 802; Norfolk & Western R. Co. v. Carter, 91 Va. 587, 22 S. E. 517; Hoyt v. Hudson, 27 Wis. 656.
33. Kroeger v. Twin Buttes R. Co., 13 Ariz. 348; Lambert v. Alcorn, 144 111. 313, 21 L. R. A. 611, 33 N. E. 53; Bois D'Arc v.
[Sec. 339 in a channel other than that in which it originally flowed.33a In other words, a stream of water which flows from a permanent source of supply through a permanent channel might well be regarded as a natural watercourse, though the channel is of human creation.33b The courts do not, however, ordinarily assert such a view, in considering the status of owners of land abutting on such an artificial channel, but incline to regard the stream in such channel as in the first place an artificial watercourse, becoming however, after the lapse of a number of years, equivalent to a natural watercourse for the purpose of determining the respective rights of the owners of land abutting thereon, usually on the theory, more or less obscurely expressed, of the creation of such rights by acquiescence,33c and occasionally on the presumption of grants of easements to that effect.33d
- Ownership of water. The water of a natural watercourse is not the subject of ownership.34 It has been compared in this regard to light and air, and also to wild animals, which are no1 private property until captured.35 So soon, however, as an individual ab-stracts water from the stream and takes it into his possession, by placing it in a reservoir or other receptacle, or by introducing it into a Hume or pipe, or other appliance, for the purpose of storage or transmission, it becomes his property, and so remains until he abandons it or allows it to escape from his possession.36 Water thus privately owned has been regarded as personal property.37
Convery, 255 111. 511, 99 N. E.
666; Hull v. Barker, 130 Iowa,
191; Parizek v. Hinek, 144 Iowa,
563, 123 N. W. 180; Chicago etc.
R. Co. v. Groves, 20 Okla. 101, 22 L. R. A. (N. S.) 802, 93 Pac. 755 (semble); York v. Davidson, 39 Ore. 81, 65 Pac. 819 (semble). In Kansas the fact that water flowing when heavy rains occur eventually cuts a channel has been regarded as sufficient to constitute the flow a water course. Brown v. Schneider, 81 Kan. 486, 106 Pac. 41.