(dissenting).
I am unable to agree with the majority’s holding because of its adverse consequences on the lands of persons through which periodic streams or drainages flow.
This action concerns the right of the City of Burley to use the waterbed of Goose Creek for drainage of its storm drains. As it originally existed, Goose Creek was a natural stream that flowed northerly from the mountains south of Oakley until it emptied into the Snake River. A watercourse has been defined by this Court as,
“A watercourse is a stream of water flowing in a definite channel, having a bed and sides or banks, and discharging itself into some other stream or body of water. The flow of water need not be constant, but must be more than mere surface drainage occasioned by extraordinary causes; there must be substantial indications of the existence of a stream, which is ordinarily a moving body of water.” 1
In its original state, Goose Creek was a watercourse.
In 1921 a dam was constructed across Goose Creek near Oakley, Idaho. The dam impounded the waters of the creek, and the stream ceased to exist below the dam except for natural drainage. Portions of the creek have been filled in but that portion within the city limits of Burley still exists as a stream channel with well-defined banks. Although the stream bed does not always have water in it, the record indicates that there is natural drainage into the creek bed from rains and during the spring thaw. There is also testimony that water has been diverted from canals owned by the Burley Irrigation Dis*105trict during flood periods, and that until 1954, water was diverted by the District into the stream bed to flush out the canals.
It has been recognized in this state that an upper landowner has an easement of drainage in land of a lower landowner to the extent that water naturally follows from the upper to the lower tract.2 The record reveals that at one time Goose Creek was a watercourse carrying approximately 5,000 inches of water through the respondent’s property. Because of the dam the amount of drainage has been dramatically reduced, but the creek bed as it still exists within the city of Burley still retains the capacity to carry more water than washed into the creek by the city’s drains. Since the drainage servitude through the respondent’s lands has never been abandoned they cannot complain of the increased use because the increased drainage is from lands naturally draining into the creek and the use does not exceed the capacity of the creek.3 The respondents cannot force the city to abandon its use of a natural drainage.
The respondents argue that the natural drainage course has been abandoned because lower landowners have filled in the creek bed. What the lower landowners do is of no concern to the city unless the natural drainage is inhibited. The only requirement is that the drainage be maintained. The respondents claim that the city’s drainage stagnates on their property, but there remedy is against lower obstructing landowners, not the city.
The majority’s holding applies to the thousands of streams in Idaho that dry-up periodically and will result in claims by lower landowners that the stream or drainage has been abandoned. Drainages are an easement on the lower landowners property even if they flow only during spring thaws or after heavy rains. The lower landowners cannot be allowed to block these natural drainages causing the upper landowner to have to find an alternative means of dispursing excess water.
The trial court’s judgment that the city does not have the right to use the natural drainage should be reversed.
BAKES, J., concurs.. Hutchinson v. Watson Slough Ditch Company, 16 Idaho 484, 488, 101 P. 1059 (1909); see: Loosli v. Heseman, 66 Idaho 469, 162 P.2d 393 (1945); Scott v. Watkins, 63 Idaho 506, 122 P.2d 220 (1942).
. See: Harper v. Johannesen, 84 Idaho 278, 371 P.2d 842 (1962); Langley v. Deshazer, 78 Idaho 376, 304 P.2d 1104 (1957); Loosli v. Heseman, 66 Idaho 469, 162 P.2d 393 (1945).
. Carter v. Hawaii County, 47 Hawaii 68, 384 P.2d 308 (1963); Youngblood v. City of Los Angeles, 160 Cal.App.2d 481, 325 P.2d 587 (1958); Callens v. Orange County, 129 Cal.App.2d 255, 276 P.2d 886 (1954); Wellman v. Kelly, 197 Or. 553, 252 P.2d 816, (1953); City of Englewood v. Linkenheit, 146 Colo. 493, 362 P.2d 186 (1961).