represent the law in a large number of States, 18 has been vigorously denounced as unjust by judges and text writers, 14 but was mellowed by the Supreme Court of the United States in an early case15 and later upheld as not violating the "due process of law" provided for by the Fourteenth Amendment.16 It is the contention of the present writer that inasmuch as a judgment of this kind-rendered against a person subject to the general jurisdiction of the State-is a valid judment, it must be treated by the courts of other States as such, and given full faith and credit. This has not always been done.17

If the foregoing is sound, it follows that if in a suit in one State on a judgment of another State want of service is set up, the proof of such want of service may or may not show "lack of jurisdiction" in the court which rendered the judgment. If the defendant was at the time within the State or was a citizen of it, then, according to the law of many States-although not of all-the court had jurisdiction, i. e., power to enter an absolutely binding judgment in spite of the lack of service, provided the officer's return of service contained a recital that personal service was had. Such a judgment, obtained in such a State, is therefore entitled in other States to the same faith and credit that it has in the State in which it was rendered. 18 It follows further-con

13 In many, perhaps most, jurisdictions there is no way in which a defendant who is not served may attack the lack of service, for if he appears in order to raise the question he thereby removes the defect. In a few jurisdictions by express statutory provision, the law seems to be to the contrary. Dozier v. Lamb (1877) 59 Ga. 461; Waring v. McKinley (1862, N. Y.) 62 Barb. 612. In a large number, however, he may raise the question collaterally or obtain relief in equity. Watson v. Watson (1827) 6 Conn. 334, in which the court recognized that they were departing from the common law as established in the English decisions. In some, he must show not only lack of service, but also that he has a meritorious defense. Meyer v. Wilson (1900) 166 Ind. 651, 76 N. E. 748, and cases in 54 AM. St. Rep. 222; 124 Am. St. Rep. 766. In others, all that need be shown is the lack of service. Ridgeway v. Bank of Tennessee (1850, Tenn.) 11 Hump. 525.

14 See the dissenting opinion in Smoot v. Judd, supra, note 12; and the monographic note in 124 Am. St. Rep. 756.

15 Walker v. Robbins (1852, U. S.) 14 How. 584. The doctrine was re-affirmed in Knox County v. Harshman (1889) 133 U. S. 152, 10 Sup. Ct. 257. In both cases equitable relief was denied.

16 Miedrich v. Lauenstein (1913) 232 U. S. 236, 34 Sup. Ct. 309. If the defendant was neither a resident nor a citizen of the State at the time of the proceedings, and yet temporarily within the State's borders, it is perhaps doubtful whether the State would be recognized as having jurisdiction to bind him by a recital of service where none in fact was had. It may be that his position would be assimilated to that of the non-citizen who is at the same time a non-resident; nevertheless, the contrary view has arguments to support it. No case involving the question has been found.

17 In Chicago Title and Trust Co. v. Smith, cited supra, note 3, the Massachusetts court held that even though it were assumed that the recitals of service in the Illinois judgment there sued upon could not be questioned in Illinois, they could be controverted in the Massachusetts suit and this, even though the recitals of service in a Massachusetts judgment could not be questioned. 18 Wilcox v. Kassick (1851) 2 Mich. 165; Lapham v. Briggs (1854) 27 Vt. 26. both cases the court assumed that the law of the State in which the judgment sued on was rendered made the recital of service conclusive, as was the case at common law.

In

trary to the assertion af the Michigan court in the passage quoted above-that "recitals (in State judgments) of jurisdiction," i. e., of jurisdictional facts, are sometimes conclusive upon the courts of other States. If the defendant was beyond the jurisdiction of the State, they are not conclusive; if he was subject to the State's jurisdiction they may be made conclusive—at least so far as service of process is concerned-if the State law so declares. If so made, they are then entitled to full faith and credit. Consequently, when suit is brought in another State upon such a judgment, before the court can determine whether the defendant may show want of service in order to show lack of jurisdiction, it must first of all inquire into the law of the State rendering the original judgment. If that law makes the recital of service conclusive, it will, in all cases in which the defendant at the time of the alleged service either was in the State concerned or was a citizen thereof, be conclusive in all other States. 19

19 In the case before the Michigan court the suit was on a Pennsylvania judgment. It happens that that State permits a return of service to be attacked in a suit on a judgment, so that the result reached by the Michigan court was correct. The doctrine announced in the opinion, however, will, if followed, ultimately lead to error in other cases.

WHEN WATER RIGHTS GO WITH

THE LAND

By William C. Dunbar, of the Boise, Idaho, Bar.

In Western States, where irrigation is necessary, an important and interesting question for the layman as well as the lawyer is whether a deed, mortgage, will, lease or other instrument transferring land will also carry with it water rights used in connection with the property. Without water the purchaser's land may be valueless, the mortgagee's security lessened and the testator's devise a mockery.

No attempt can be made in an article of this length to give a com'plete statement of the law regarding the transfer of water rights with land for the reason that the law varies considerably in different States. It is hoped, however, that the principles set forth and the authorities cited will help to clear up some difficulties and show the trend of the later decisions and statutes.

It may be said, in a preliminary way, that the intention of the parties is of fundamental importance when we are dealing with transfers of water rights. If the instrument of conveyance expressly provides that all or certain specified water rights shall pass with the land, such rights will go as intended. But the deed or mortgage or will may not mention water rights. Even in such cases, unless something appears to the contrary, the fair presumption would be that those rights, used in connection with the land and for its benefit, were intended to pass with it.

In this connection, it should be remembered that such water rights are real estate (Kinney on Irrigation and Water Rights, 2nd Ed., Vol. 2, Sec. 769) and are sometimes expressly defined as such by statute. (Compiled Laws of Idaho, 1919, Sec. 3056.) It is also well settled that water rights may be and usually are appurtenant to the land on which the water is beneficially used and, when they are, will pass with the land (Devlin on Real Estate, 3rd Ed., Sec. 863) even though not mentioned in the deed, if there is no evidence of a contrary intent. A deed conveying land, "together with the appurtenances," carries with it the water rights appurtenant to the land, unless they are expressly excepted or reserved from the grant (Russell v. Irish, 20 Idaho 194; 118 P. 501) or unless it appears that, by the express

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enumeration and description of water rights in the deed, other rights, though appurtenant, were not intended to pass. (Wiel's Water Rights in Western States, Vol. 1, p. 590); (Paddock v. Clark, 22 Idaho 498; 126 P. 1052.)

But the greatest difficulty has arisen in cases where the water right is represented by shares of stock in a mutual irrigation company. Such companies are common in irrigation States. They the organized solely for the purpose of distributing water among their own stockholders and not for profit. Each share of stock represents the right to receive a certain amount or share of the water. (Wiel's Water Rights in Western States, 3rd Ed., Vol. 2, Sec. 1266.) If a farmer desires to receive water from such a company he cannot buy it or rent it, but must purchase shares of the company's capital stock. The confusion arising in transfers where the water rights are thus represented results from the fact that while a water right used for the benefit of certain land is, in its nature, real estate, the shares of stock are personal property, and are frequently so described by statute.

Moreover, the statutes generally provide the mode of transfer and attachment and sale on execution of shares of stock, and this is different from that prescribed for real property. It is thus difficult, from a legal standpoint, to grasp the idea of shares of water stock passing as an incident to a conveyance of real property. It is also true that water, represented by shares of stock, may be used upon any land the owner of the stock may desire. He may transfer the water from one farm to another or may dispose of the stock independently of the land. It may, therefore, be difficult to say that such water is appurtenant to any particular land.

For these reasons it has sometimes been stated generally that shares of stock or water rights represented by them are not appurtenant to land. (Farnham on Water and Water Rights, Vol. 3, p. 2001.) So, in an action to recover damages for breach of warranty in a deed which conveyed land with appurtenances but did not mention water, and where the plaintiff was later deprived of water, it was held that damages could not be recovered because the water, represented by shares of stock, was not appurtenant to the land. (George v. Robinson, 23 Utah 79; 63 P. 819.) And in an early Idaho case the court said: "Shares of stock in an irrigation corporation are not appurtenant to the land owned by the owner of such shares, even though such land

be irrigated by water from a canal owned by such corporation." (Wells v. Price, 6 Idaho 490, 56 P. 266.)

On the other hand, in a California case, it was held that shares of stock in a water company, representing water rights used on the land, should be distributed to the devisees of the land instead of to the residuary legatee. (In re Thomas Estate, 147 Cal. 236; 81 P. 539.)

"Conceding," said the Court. "that they (shares of water stock) were so far personal property that the decedent might have transferred the water right by indorsement of the certificate, and thereby have severed the water right from his land, it remains undeniably true that the right represented by the certificate the right to receive eight hours' run of water in his turnwas appurtenant to the land, though deemed personal property with refererence to the mode of transfer. In this view the stock certificate was merely the evidence of the water right. * * * Therefore it was entirely proper to direct a transfer of the certificate to the respondent. It is her muniment of title and passes with the right of which it is evidence, just as title deeds should go to the distributee of real estate."

In the concurring opinion by McFarland, J., however, the distinction is made between a devise in a will and a grant of land by deed, in the former case great latitude being given to the language used in order to carry out the evident intent of the testator. The Judge adds:

"Of course, ordinarily, a grant of land does not carry, as appurtenant to the land, certificates of stock in a corporation; but there is nothing in the leading opinion which disturbs this general opinion."

In a late Idaho case (Ireton v. Idaho Irrigation Co., Ltd., 30 Idaho 310; 164 P. 687) it was held that a mortgage of land, "together with any and all water rights owned by the mortgagors or belonging to, or connected with the premises," entitled the mortgagee to a judgment, in an action of foreclosure, decreeing that the land and water rights, represented by shares of water stock, together with the shares of stock, be sold to satisfy the judgment. Counsel contended that the shares of stock were personal property and the water right would only pass by their assignment and was not subject to the mortgage on the land. But the court cited with approval the case of In re Thomas Estate, supra, and said:

"While shares of stock in an ordinary corporation, organized for profit, are personal property, and while this court has held shares in an irrigation company to be personal property, the fact must not be lost sight of that a water right is, as heretofore shown, real estate, and that in case of a mutual irrigation company, not organized for profit, but for the convenience of its members in the management of the irrigation system and in the distribu