§ 31-202 — Watercourse, defined

Nebraska § 31-202

• Jurisdiction: Nebraska
• Ch. 31: Drainage

Text

Any depression or draw two feet below the surrounding lands and having a continuous outlet to a stream of water, or river or brook shall be deemed a watercourse.

Legislative History

Source: Laws 1911, c. 142, § 2, p. 466; R.S.1913, § 1772; C.S.1922, § 1719; C.S.1929, § 31-302; R.S.1943, § 31-202. Annotations: 1. Watercourse 2. Not a watercourse 3. Miscellaneous 1. Watercourse A watercourse need not flow continuously, but it must have a well-defined and substantial existence. Northport Irr. Dist. v. Jess, 215 Neb. 152, 337 N.W.2d 733 (1983). Under facts in this case, defendant obstructed waters that ran in the equivalent of a natural watercourse and plaintiff was entitled to injunction and consideration of issue relating to damages. Paasch v. Brown, 190 Neb. 421, 208 N.W.2d 695 (1973). Where springs are source of definite watercourse, owner of land does not have exclusive right to control and use. Brummund v. Vogel, 184 Neb. 415, 168 N.W.2d 24 (1969). Regardless of depth, flow of surface water in well-defined course cannot be arrested. Town of Everett v. Teigeler, 162 Neb. 769, 77 N.W.2d 467 (1956). Watercourse must be stream in fact as distinguished from mere surface drainage. Reed v. Jacobson, 160 Neb. 245, 69 N.W.2d 881 (1955); Mader v. Mettenbrink, 159 Neb. 118, 65 N.W.2d 334 (1954); McGill v. Card-Adams Co., 154 Neb. 332, 47 N.W.2d 912 (1951). Watercourse is defined, but a depression or draw is not. Bussell v. McClellan, 155 Neb. 875, 54 N.W.2d 81 (1952). Watercourse is defined by statute, and may not be obstructed. Courter v. Maloley, 152 Neb. 476, 41 N.W.2d 732 (1950). Artificial ditch may be a watercourse. Jack v. Teegarden, 151 Neb. 309, 37 N.W.2d 387 (1949). A watercourse is a stream of water with a well-defined existence which makes it valuable to riparian owners along its course. Cooper v. Sanitary Dist. No. 1, 146 Neb. 412, 19 N.W.2d 619 (1945). Ravine with well-defined banks of some fifteen feet in depth draining off surface water from tributary gullies is a watercourse within statutory definition. Faiman v. City of Omaha, 131 Neb. 870, 270 N.W. 484 (1936). Drainage ditch fulfilled statutory requirements of a watercourse. Barthel v. Liermann, 2 Neb. App. 347, 509 N.W.2d 660 (1993). 2. Not a watercourse To constitute a watercourse depression must have an outlet into a stream. Skolil v. Kokes, 151 Neb. 392, 37 N.W.2d 616 (1949). Cutting a channel through a natural embankment to drain lake into a basin does not bring case under this section. Yocum v. Labertew, 145 Neb. 120, 15 N.W.2d 384 (1944). A draw, although more than two feet deep where it enters land, does not continue to be a watercourse, where it flattens out and water runs wherever gravity will take it. Hengelfelt v. Ehrmann, 141 Neb. 322, 3 N.W.2d 576 (1942). Where water collecting in basin was not drained into any natural watercourse, natural depression or draw draining into natural watercourse, did not bring case under above section. Warner v. Berggren, 122 Neb. 86, 239 N.W. 473 (1931). Flow of water involved in action to enjoin maintenance of dam was diffused surface water and not a watercourse. Muhleisen v. Krueger, 120 Neb. 380, 232 N.W. 735 (1930). Watercourse must be a stream in fact as distinguished from mere temporary surface drainage. Miksch v. Tassler, 108 Neb. 208, 187 N.W. 796 (1922). 3. Miscellaneous Surface water is defined as water which appears upon the surface of the ground in a diffused state, with no permanent source of supply or regular course, which ordinarily results from rainfall or melting snow. In order to constitute an exception to the general rule that surface water may be repelled, at least some of the distinctive attributes of a watercourse must be demonstrated. Shotkoski v. Prososki, 219 Neb. 213, 362 N.W.2d 59 (1985). In order to constitute an exception to the general rule that surface water may be repelled, at least some of the distinctive attributes of a watercourse must be demonstrated. Grint v. Hart, 216 Neb. 406, 343 N.W.2d 921 (1984). The flow of surface water in any well-defined course, whether it be a ditch, swale, or draw in its primitive condition, and whether or not it is two feet below the surrounding land, cannot be arrested or interfered with to the injury of neighboring proprietors. Barry v. Wittmersehouse, 212 Neb. 909, 327 N.W.2d 33 (1982). City discharging water from its sewage disposal plant into a gully or creek for a period of over ten years, in open, notorious, peaceful, uninterrupted, and adverse manner, may acquire an easement for that purpose. Hall v. City of Friend, 134 Neb. 652, 279 N.W. 346 (1938). Owner of drainage ditch in continuous use for more than ten years acquires an easement for the purpose of drainage and damages are not recoverable by owner of servient estate against owner of easement unless latter was negligent in use. Bures v. Stephens, 122 Neb. 751, 241 N.W. 542 (1932).