It may be if water flows into it through out the year from springs; Maxwell v. Shirts, 27 Ind. App. 529, 61 N. E. 754, 87 Am. St. Rep. 268; or where there is a flow of surface-water from rains and melting snows at regular seasons and such has been imme morially the case ; Gibbs v. Williams, 25 Kau. 214, 37 Am. Rep. 241; Mace v. Mace, 40 Or. 586, 67 Pac. 660, 68 Pac. 737.
A stream does not cease to be a water-course and become mere surface water, because at certain points it spreads over a level meadow several rods in width, and flows for a dis tance without defined banks before flowing again into a definite channel ; West v. Taylor, 16 Or. 165, 13 Pac. 665. Overflow water from a water-course is not surface water ; Cole v. R. Co., 20 Okl. 227, 94 Pac. 540, 15 L. R. A. (N. S.) 268.
In the absence of a permanent source of supply, there can be no water-course in its legal sense ; Jeffers v. Jeffers, 107 N. Y. 650, 14 N. E. 316.; Shields v. Arndt, 4 N. J. Eq. 234 ; Robinson v. Shanks, 118 Ind. 125, 20 N. E. 713.
A swale is a low body of wet land without channel or perceptible current. In a strict legal sense it is not a water-course, but where water has accumulated from springs, rains, and melting snows and has flowed for several miles between regular banks of a well defined water-course, which empties into a lake from which the water flows through water-ways and through which the water flows into a bay or the sea, the water-ways referred to are water-courses and the water therein is not mere surface water ; West v. Taylor, 16 Or. 165, 13 Pac. 665.
If a flow of water through an artificial ditch, established originally to carry a por tion of a river and continued for many years without change qr objection, was such as to constitute a natural water-course had the flow begun without artificial aid, the jury may find that it is a water-course, subject to the rules applicable to natural water courses ; Stimson v. Brookline, 197 Mass. 568, 83 N. E. 893, 16 L. R. A. (N. S.) 280,
125 Am. St. Rep. 382, 14 Ann. Cas. 907. It has often been decided both in England and America that water-courses made by the hand of man may have been created under such conditions that, so far as the rules of law and the rights of the public are con cerned, they are to be treated as if they were of natural origin ; Freeman v. Weeks, 45 Mich. 335. They are natural streams or flow of water, though flowing in an artificial channel ; Nuttall v. Bracewell, L. R. 2 Exch. 1; Reading v. Althouse, 93 Pa. 400; Weath erby v. Meiklejohn, 56 Wis. 73, 13 N. W. 697.
Flood waters are not cla'ssified as surface waters. They are divided into ordinary and extraordinary floods. By the common law, flood water overflowing the banks of a stream is a part of the stream although not flowing in the channel ; Broadbent v. Rams botham, 11 Exch. 602. In some states, flood waters of a stream are treated as surface waters, to be dealt with as such ; Shelby ville & B. Turnpike Co. v. Green, 99 Ind. 205 ; Kenney v. R. Co., 74 Mo. App. 301; Mis souri P. R. Co. v. Keys, 55 Kan. 205, 40 Pac. 275, 49 Am. St. Rep. 249 ; Cass v. Dicks, 14 Wash. 75, 44 Pac. 113, 53 Am. St. Rep. 859. But in the majority of the states, flood waters are held to be part of the stream. The United States circuit court for the district of Indiana declined to follow the decisions of the supreme court of that state respecting this subject. The supreme court in Taylor v. Fickas, 64 Ind. 167, 31 Am. Rep. 114, and subsequently, held that flood waters are surface waters. The federal court in Cairo, V. & C. R. Co. v. Brevoort, 62 Fed. 129, 25 L. R. A. 527, held that flood waters constitute the waters of the rivers and are not surface waters.
Under a covenant by a lessor to pay "all water rents imposed or assessed upon the premises or on the lessor or lessee in re spect thereof," the lessor is not bound to pay for water supplied by a water com pany to the lessees for trade purposes ; [1897] 1 Ch. 633, A. C.