Rait v. Furrow

*105 The opinion of the court was delivered by Johnston, C. J.:

Is the stream in question a natural watercourse? If it is, the embankment which obstructs its flow is a nuisance which was properly enjoined; but, on the other hand, if it is a vagrant outburst, which temporarily overflows the surface of the land, it is to be treated as surface-water — a common enemy against which Rait was entitled to fence. A watercourse consists of a channel, with banks, and bed, and running water. There must be a source of supply, a defined channel, and permanence of flow. In Gibbs v. Williams, 25 Kan. 214 , 87 Am. Rep. 241 , a general definition was given:

“Again, for a watercourse there must be a channel, a bed to the stream, and not merely lowland or a depression in the prairie over which water flows. It matters not what the width or depth may be, a watercourse implies a distinct channel, a way cut and kept open by running water, a passage whose appearance, different from that of the adjacent land, discloses to every eye on a mere, casual glance the bed of a constant or frequent stream.” (Page 220. See, also, Palmer v. Waddell, 22 Kan. 352 ; U. P. Rly. Co. v. Dyche, 31 Kan. 120 , 1 Pac. 243 ; K. C. & E. Rld. Co. v. Riley, 33 Kan. 374 , 6 Pac. 581 ; C. K. & W. Rld. Co. v. Morrow, 42 Kan. 339 , 22 Pac. 413 ; C. K. & N. Rly. Co. v. Steck, 51 Kan. 737 , 33 Pac. 601 ; Railway Co. v. Scott, 71 Kan. 874 , 81 Pac. 1131 .)

East creek, the stream in question, has a well-defined channel, with bed and banks, in which there has been a steady flow of water since the early part of 1903. Prior to that time the upper part of that stream, which drained the hill country, had a well-defined course, with banks, until it reached the bottom-land, from which place it passed down a depression in Furrow’s land and extending to the land of Rait. In this depression the water followed no distinct course, and there was no well-defined channel. From the facts found it cannot be said that the flow of water through *106 Furrow’s land prior to 1903 constituted a stream with the attributes of a watercourse. Water did issue from some springs, but only in wet weather, and the water which passed down the depression near the springs left no impress of permanent running water. Since the flood of 1903, however, there has been a regular channel, with banks and bed, and the flow of water has been so steady and persistent as to show -that the stream has a well-defined and substantial existence.

It is argued that the supply of water is not so permanent in character as to make it a watercourse. The court did find that ordinarily the water in the stream does not come from the hills; that it either comes from invisible springs in the bottom of the channel or from seepage, but from which of the two sources the evidence did not disclose. It is argued that seepage is • no - more than surface-water, and that, as the court could not say that springs existed, its finding was the equivalent of a holding that there was no permanent supply.

To constitute a watercourse it is necessary that there be a permanent source of supply. (Barkley v. Wilcox, 86 N. Y. 140 , 40 Am. Rep. 519 ; Sally M. Jeffers et al., Appellants, v. Robert N. Jeffers, Respondent, 107 N. Y. 650 , 14 N. E. 316 ; Gregory v. Bush, 64 Mich. 37 , 31 N. W. 90 , 8 Am. St. Rep. 797 .) The source may be springs (Pyle v. Richards, 17 Neb. 180 , 22 N. W. 370 ; Mitchell v. Bain et al., 142 Ind. 604 , 42 N. E. 230 ; Wolf v. Brothers, 21 Pa. Co. Ct. 627 ), or it may be surface-water (Arthur v. Grand Trunk R. W. Co., 22 Ont. App. 89, 95; Beer v. Stroud, 19 Ont. 10; McKinley v. Chosen Freeholders of Union Co., 29 N. J. Eq. 164; Kelly v. Dunning, 39 N. J. Eq. 482; Eulrich v. Richter, 41 Wis. 320 ; Barnes v. Sabron, 10 Nev. 217 ; 2 Farnham, Waters & Water Rights, § 457; Gould, Waters, 3d ed., §263), or a pond formed by surface-water (Neal v. Ohio River R. Co., 47 W. Va. 316 , 34 S. E. 914 ).

If, as the court found, the flow of water is continuous and has the element of permanence, it is imma *107 terial 'whether it reaches the channel by seepage or from springs. It is enough that there is a living source — a steady supply which is regularly discharged through a well-defined channel made by the force of the waters. Whether the water comes from a spring, subterranean vein, or surface-water, it becomes a watercourse from the point where it comes to or collects on the surface and flows in a well-defined channel or bed, with such banks as will ordinarily confine the water and cause it to run in a definite and certain direction. The supreme court of Ohio, in defining surface-water and its transition into a watercourse, said:

“Surface-water is that which is diffused over the' . surface of the ground, derived from falling rains and melting snows, and continues to be such until it reaches some well-defined channel in which it is accustomed to, and does, flow with other waters, whether derived from the surface or springs; and it then becomes the running water of a stream, and ceases to be surface-water.” (Crawford v. Rambo, 44 Ohio St. 279 , 282, 7 N. E. 431 .)

In Mitchell v. Bain et al., 142 Ind. 604 , 42 N. E. 230 , it was remarked:,

“Even surface-water becomes a natural watercourse at the point where it begins to form a reasonably well-defined channel, with bed and banks, or sides and current, although the stream itself may be very small, and the water may not flow continuously. Gould, Waters, § 263; Churchill v. Lauer, 84 Cal. 233 , 24 Pac. 107 .” (Page 616.)

The question is not to be determined alone from the origin of the water, for streams may be composed wholly of surface-water or that which falls in the shape of rain or snow. In Arthur v. Grand Trunk R. W. Co., 22 Ont. App. 89, it was said:

- “If a stream is traced up toward its source a point will always be reached where it ceases to be definable by a bed and banks; but until that point is reached it must be a watercourse, whether its origin be a spring, or several springs, or the rain or snowfall of a district collected naturally, and flowing away for the first time *108 in a visible course or channel. All our lakes, rivers and streams have their source in the clouds of the sky, precipitated in the form of rain or snow, and the sole question in every case is, whether the water thus precipitated has formed for itself a visible course or channel, and is of sufficient magnitude or volume to be serviceable to the persons through or along whose land it flows. It is immaterial that it may be intermittent in its flow, or that at certain seasons of the year there may be little or even no flow of water.” (Page 94.)

So it has been held that when surface-waters collect into a pond which is of a permanent character they cease to be surface-waters. (Neale v. Ohio River R. Co., 47 W. Va. 81 .6, 34 S. E. 914 ; Schaefer v. Marthaler, 34 Minn. 487 , 26 N. W. 726 , 57 Am. Rep. 73 ; Alcorn v. Sadler, 66 Miss. 221 , 5 South. 694 .)

It is plausibly contended that the water has not flowed in the stream for such a length of time as to indicate permanence; that as it has not flowed from time immemorial it cannot be regarded as an ancient watercourse. It is not essential that a watercourse shall have all the characteristics and attributes of every other watercourse. (2 Farnham, Waters & Water Rights, § 455.) It is not uncommon for a stream to leave its channel and make for itself a new course. The test is not the age of the stream, nor the length of time its waters have followed a particular channel, but it is whether it has the characteristics of permanence. The waters of the Missouri river frequently leave portions of its accustomed bed and cut a new channel far away from the former one, and occasionally they shift back again and pass through the old channel. In such cases the new channel does not require great age to give it the character of a watercourse, and there can be no distinction between that river and a running stream of less magnitude. East creek has been a regular flowing stream in all seasons, wet and- dry, since the spring of 1903. While the volume of water is not large, it is large enough to be serviceable, as it flows at the rate of half a barrel a minute, and to throw it *109 back upon the land of the plaintiff would necessarily work great injury. If it had only flowed during freshets, or in wet seasons, there would be more reason to treat it as a temporary stream; but the matter of permanence was a question of fact for the trial court, and, although its existence originated in a flood, and only a. year or two ago, the facts stated appear to be sufficient to support the finding of the court.

The fact that East creek does not continue in a definite channel across Rait’s land and until it reaches the river is pressed upon the attention of the court. It is not shown to flow through a well-defined, natural channel much beyond Furrow’s land, nor that it discharges into another watercourse. But is it important or necessary that a watercourse should extend to and find its outlet in another watercourse, and thence' to the sea? Ordinarily a stream of water, flowing in a definite channel, discharges itself into a river or some other watercourse, but the fact that a stream may spread out over the land, percolate into the soil, or lose itself in some subterranean channel, does not deprive the part which flows regularly through a channel' of its character as a watercourse. In a Vermont case it appeared that water from springs ran down a hillside, formed a small pond, and thence by a distinct course ran down a ravine to a point where it was discharged upon a meadow. Ordinarily the stream was only two or three inches deep and about six inches wide, and, while the volume of water was small, its distance very short, and its outlet the unbroken surface of a meadow, it was held to be a watercourse. (Wm. P. Hawley & N. P. Hawley v. Henry W. Sheldon, 64 Vt. 491 , 24 Atl. 717 , 83 Am. St. Rep. 941 .)

Subterranean currents of water emerge from the ground and flow through surface channels, and, again, running streams sometimes sink away and are no longer traceable on the surface. The outlet of a stream may be unknown, but if its course on the surface — so far as it runs — is well defined, and has the element of *110 permanence, it must be regarded as a watercourse, and its surface flow at least cannot be interrupted nor diverted from its natural channel. In Mansford v. Ross, 4 N. Z. L. R. 290, it was held that where a stream which empties itself into a swamp, all definite channel being lost, and there is a channel emerging from the other side, the stream running into the swamp is a watercourse, and the owner of the land through which that stream runs cannot divert the water and defeat the riparian rights of those on the lower stream on the other side of the swamp. In Mitchell v. Bain et al., 142 Ind. 604 , 42 N. E. 230 , it was said:

“A stream does not cease to be a- watercourse and become mere surface-water because at a certain point it spreads over low ground several rods in width and flows for a distance without a defined channel or banks before flowing again in a definite channel.” (Page 614. See, also, Ferris v. Wellborn, 64 Miss. 29 , 8 South. 165 ; Hebron Gravel Road Company v. Harvey, 90 Ind. 192 , 46 Am. Rep. 199 ; Wash. Water Co. v. Garver, 91 Md. 398 , 46 Atl. 979 ; Case v. Hoffman and others, 84 Wis. 438 , 54 N. W. 793 , 20 L. R. A. 40, 36 Am. St. Rep. 937 .)

But whatever may be the rule as to subterranean currents or waters passing through the ground by percolation, there can be no question but that surface-currents of living water, running in defined channels, and having the element of permanence, are to be regarded as watercourses, whether the outlets are through defined. channels over the surface or by subterranean channels, or even by percolation through the earth. In Strait v. Brown, 16 Nev. 317 , 40 Am. Rep. 497 , it was decided that a creek having its source in springs, which ran a short distance through a natural surface-channel and then discharged into a large slough which had no natural surface-outlet, was a watercourse, and that the waters running in the surface-channel could not be diverted to the injury of the lower owners. The character of the outlet beyond the land of Furrow cannot materially affect the character of the stream flowing *111 through Furrow’s land, and that stream, under the findings of the trial court, must be regarded as a natural watercourse.

The judgment of the district court is therefore affirmed.

All the Justices concurring.