118 P. 848 | Or. | 1911
delivered the opinion of the court.
“That a water course is a stream of water usually flowing in a particular direction, with well-defined .banks and channel, but that the water need not flow continuously—the channel may sometimes be dry; that the term ‘water course’ does not include water descending from the hills down the hollows and ravines, without any definite channel, only in times of rain and melting snow, but that, where water, owing to the hilly or mountainous configuration of the country, accumulates in large quantities from rain and melting snow, and at regular seasons descends through long, deep gullies or ravines upon the lands below and in its onward flow carves out a distinct and well-defined channel, which even to the casual glance bears the unmistakable impress of the frequent action of running water, and through which it has flowed from time immemorial, such a stream is to be considered a water course and to be governed by the same rules.”
“All ditches now constructed, or hereafter to be constructed, for the purpose of utilizing the waste, spring, or seepage waters of the State, shall be governed by the same laws relating to priority of right as those ditches constructed, for the purpose of utilizing the waters of running streams; provided, that the person upon whose lands the seepage or spring waters first arise, shall have the right to the use of such waters.”
This section is a substantial copy of Section 2269, Mills’ Annotated Statutes of Colorado, from which, evidently, our legislature has taken the section of our code above quoted, and which was construed by the Supreme Court of Colorado, in the case of Denver Ry. Co. v. Dotson, 20 Colo. 304 (38 Pac. 322). In that case the plaintiff constructed on government land a ditch, by which he diverted the water from a certain canyon, and used it for irrigating land occupied by himself. The canyon was not a running stream, but was fed entirely by the rainfall in the surrounding hills. By the use of the water so collected, the plaintiff irrigated a large portion of his land. The court there held that the appropriation was a valid one, notwithstanding the fact that the source of the appropriation was not a running stream. This construction of the statute appears to be reasonable, and has our approval.
In the case at bar, it is not pretended that the waters in question had their rise upon the land of the defendants, but only that the Quartz Gulch passes through a ■portion of the land, so that the defendants are not within
The decree thus modified will be affirmed.
Affirmed.