## Facts

- Frank Hiber owned land in Johnson County, Wyoming, where water would occasionally move across the property during heavy precipitation or snowmelt.
- Hiber built a dam or embankment to capture and store this water on his land.
- Downstream landowner T. H. Adamson obtained a state permit to construct a reservoir to appropriate water he expected to reach his property.
- The flow onto and across Hiber’s land was irregular and intermittent, appearing only during wet conditions.
- The water spread over grassy ground, percolated into porous soil, and dissipated rather than running in a confined course.
- The area of flow lacked a well-defined bed, banks, or a distinct channel.
- The State, acting through the Attorney General and the Board of Control, sought to prevent Hiber from impounding the water and to protect the downstream permitted reservoir site.

## Issues

1. Whether an irregular, intermittent flow across private land, without a defined bed, banks, or channel, constitutes a natural stream or watercourse subject to state regulation and prior appropriation.
2. Whether the State could obtain an injunction requiring a landowner to allow such water to pass to a downstream party holding a state reservoir permit.

## Decision

- The Wyoming Supreme Court affirmed the district court’s judgment for Hiber.
- The court held the water at issue was diffuse surface water, not a natural stream or watercourse.
- Because the water was not a stream, it was not subject to administration as an appropriable stream under the state’s water-law system on these facts.
- The State was not entitled to injunctive relief preventing Hiber from maintaining his impoundment.

## Legal Principles

- A natural stream or watercourse generally requires a reasonably well-defined channel with bed and banks, a more or less continuous or habitual flow, and an identifiable course and outlet.
- Surface water is diffused runoff from rain or melting snow that is not collected in a defined channel and tends to spread, percolate, and dissipate.
- Statutory prior-appropriation and permitting systems apply to streams and defined watercourses, not to diffuse surface runoff that has not formed a natural stream.
- Courts apply the ordinary meaning of “stream” absent clear legislative direction expanding regulatory coverage to intermittent or diffuse flows.

## Conclusion

The court classified the intermittent runoff on Hiber’s land as surface water due to the absence of a defined channel, bed, and banks and the lack of a habitual flow, and therefore refused to treat it as an appropriable stream or to enjoin Hiber from impounding it.


State v. Hiber, 48 Wyo. 172, 44 P.2d 1005 (Wyo. 1935)