No. 1450 | N.M. | May 5, 1912
OPINION OP THE COURT.
Appellants assign error as follows : 1st’: That the trial court erred in finding that the Garcia Arroyo carried only flood waters or surface waters, and that the law applicable to 'surface waters governs this case: 2nd; That the trial court erred in finding that under the issues as raised by the pleadings the question of surface waters was to be considered at all: 3rd; That the trial court erred in not holding that under the pleadings the defendants were estopped from asserting or claiming the waters of the Garcia Arroyo were surface waters: 4th; That the trial court erred in not. granting the injunction asked for and compelling the defendant Garcia to remove the dam he had constructed across the Garcia Arroyo: oth; That the trial court erred in not finding the issues in this case for the plaintiffs: 6th; That the trial court erred in its finding of law as to what constitutes surface or flood waters; and T'th; that the trial court erred in finding that a stream or water course carries only flood or surface waters unless it runs during the entire year.
In our opinion the first, sixth and seventh assignments are alone necessary for a determination of this case, these three relating to the same subject, namely, whether such a stream or arroyo, the obstruction of which is alleged here, is or is not a natural water course. The legal definition of such a water course, as adopted by the courts of last resort in various jurisdictions, is shown by the-following quotations:
“When surface water, having no definite source, supplied from fall rains and melting snows from a hilly region or high bluffs, and, owing to 'the natural rormation of the surface of the ground, is forced to seek an outlet through a gorge or ravine, and by its flow assumes a definite and natural channel, and escapes through such channel regularly during the spring months of every year and in seasons of heavy rains, and such has always been the-case, as far as the memory of man runs, such accustomed channel through which the waters flow possesses the altnlrates of a natural water course. * * * The flow of the.ivaior need not be continuous, and the size of the stream is immaterial.” Mo. Pac. R. Co. v. Wren, (Kan.) 62 P. 7" date_filed="1900-07-25" court="Kan. Ct. App." case_name="Missouri Pacific Railway Co. v. Wren">62 Pac. 7.
2 “Where surface water from rains and snows in. a hilly -country, by the natural formation of the ground, seeks its outlet through a gorge or ravine, and by its flow assumes a definite channel, such a one, to a casual glance of the eye, bears an unmistakable sign of the frequent action of running water, and through which at regular seasons the water flows, and such has been immemorially the case, such a stream is a natural watercourse.” Gibbs v. Williams, 25 Kan. 241.
“The elements of a water course are definite banks, with an obvious bed or channel showing the presence of running water at times, anyway.” Erwin v. Erie R. Co., N. Y., Sup. 315, 317.
“A stream does not cease to be a water course, and become mere surface water, because at a certain point it spreads over a level meadow several rods in width, and flows for a distance without defined banks before flowing again in a definite channel.” Harrington v. Demaris, (Or.) 77 P. 603" date_filed="1904-07-18" court="Or." case_name="Harrington v. Demaris">77 Pac. 603, 606, (Citing Gould Waters, 3rd ed., sec. 264).
“A water course consists of bed, banks and water. Yet the water need not flow continually. There are many water courses which are sometimes dry. To maintain the right to a water course it must be made to appear that the water usually flows in a certain direction, and by a regular channel,, with banks and sides.” Chamberlain v. Hemingway, 27 A., 239" date_filed="1893-03-06" court="Conn." case_name="Chamberlain v. Hemingway">27 Atl., 239, 240, 63 Conn. 1; 22 L. R. A., 45; 38 Am. St. Rep. 330.
“A water course is defined to be ‘a running stream of water; a natural stream, including rivers, creeks, runs and rivulets.’ Further defining the term the court said: ■‘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 or banks, and "usually discharges itself into some other stream or body of water.’ ” Sanguinetti v. Pock, 136 Cal. 466" date_filed="1902-06-02" court="Cal." case_name="Sanguinetti v. Pock">136 Cal. 466, 471; 89 Am. St. Rep. 169; 69 P. 98" date_filed="1902-06-02" court="Cal." case_name="Sanguinetti v. Pock">69 Pac. 98. Quoted with approval in Weil on Water Rights in the Western States, 2nd ed., p. 165.
In McClure v. Red Wing, 28 Minn., 191, 9 N.W., 767" date_filed="1881-07-28" court="Minn." case_name="McClure v. City of Red Wing">9 N. W., 767, it was held: “In a broken and bluffy region of country like that part of southeastern Minnesota adjacent to the* Mississippi Eiver and its tributaries, intersected by long, deep ravines, surrounded by high, steep hills or bluffs, down which large quantities of water from rain or melting snow rush with the rapidity of a torrent, often attaining the volume of a small river, it would be manifestly inappropriate and unjust to apply the rules of common law applicable to ordinary surface water. In many respects such streams partake more of the nature of natural streams-than of ordinary surface water, and must, at least to a certain extent, be governed by the same rules. But no-one has a right to obstruct or divert such waters so as to cast them upon the property of others to their injury.” Cited by Farnham on Waters and Water Rights, vol. 2, par. 455, A. p., 1556. “It is immaterial that it (the stream) may be intermittent in its flow, or that at certain seasons of the year there may be little or even no flow of water. In a country such as Ontario, where there are no mountain .(streams supplied by melting snow, and. where there are long periods with but little rainfall, streams of considerable magnitude become nearly dry in summer; and yet, no one would hesitate to call them water courses.”" Arthur v. Grand Trunk R. Co., 22 Ont. App., Rep. 89, Affirming Beer v. Straud, 10 Ont. Rep. 10, See Also Farnham, Waters and Water Rights, vol. 2, par. 459, p. 1563.
As to the true course of the arroyo, whether it did or did not run through the land of the defendant, the evidence was conflicting. The trial court did not decide the question, and that matter is not before us for review. The cause is reversed on the ground that the trial court erred in its definition of a natural water course, and remanded for further proceedings in conformity with this opinion.