$130, Water Rights as Appurtenances.

become appurtenant or fixed to some specific land from which it can be separated only in the manner provided by the statute for changing the place of use. (52) Thus, attached to the land, the water right in these states and territories cannot thereafter be sold separately except with the consent of the state engineer after the publication of notice thereof. It may be observed that "appurtenant" does not mean “inseparable," and water rights, although appurtenant to land and hence passing by a conveyance of the land, may nevertheless exist as entirely independent and distinct property rights, and be conveyed separate and apart from the land. (53)

§ 131. Tenants in Common.

In

As we have seen, (54) several persons may join in constructing a ditch, canal or other works and in diverting the water from the natural stream. such cases they are tenants in common of the ditch, canal or other works, but such joint ownership of the means of diversion does not make them tenants in common in the ownership of the water rights. (55) For, as we have seen, these two distinct properties may be owned by different persons, associations or corporations. (56) Appropriators of different dates may be tenants in common in the means of diversion without losing their priority of appropriation. (57)

(52) Ante, $47.

(53) Cave v. Crafts, 53 Cal. 135 ('78); Coonradt v. Hill, 79 Cal. 587, 21 P. 1099 ('90); Crooker v. Benton, 93 Cal. 365, 28 P. 953 ('92); Smith v. Corbit, 116 Cal. 587, 48 P. 725 ('97); Tucker v. Jones, 8 Mont. 225, 19 P. 571 ('88); Sweetland v. Olsen, 11 Mont. 27, 27 P. 339 ('91); Smith v. Denniff, 23 Mont. 65, 57 P. 557 ('99), 60 P. 398 ('00); Simmons v. Winters, 21 Ore. 35, 27 P. 7 ('91); Coventon v. Seufert, 23 Ore. 548, 32 P. 508 (93); Turner v. Cole, 31 Ore. 154, 49 P. 971 ('97); Toyaho Cr. Irr. Co. v. Hutchins, 21 Tex. Civ. App. 274, 52 S. W. 101 ('99); Snyder v. Murdock, 20 Utah 419, 59 P. 91 ('99); Fisher v. Bountiful City, 21 Utah 29, 59 P. 520 ('99); Frank v. Hicks, 4 Wyo. 502, 35 P. 475, 1025 (94); McPhail v. Forney, 4 Wyo. 556, 35 P. 773 ('94). See Colorado cases cited in note 34, supra.

(54) Ante, $127.

(55) Ante, $129.

(56)

Ante, $116.

(57) Rominger v. Squires, 9 Colo. 327, 12 P. 213 ('86); Farmers' H. L. C. & R. Co. v. Southworth, 13 Colo. 11, 21 P. 1028 ('89); Nichols v. McIntosh, 19 Colo. 22, 34 P. 278 ('93).

AND CONVEYANCES.

Where the construction of diverting works and the appropriation of water are both accomplished and owned by several persons acting together, there is then a tenancy in common in both the ditch and the water rights. The quantity of water to which each of such co-operators is entitled is determined by the terms of the contract between them, and their joint rights are governed by the law of co-tenancy. (58) One tenant in common may preserve his interest in the property after an abandonment by the others. (59) One tenant in common may maintain a suit in equity to restrain an infringement of his rights in the waters of a stream without joining his co-tenant. (60) Each tenant in common is equally bound to keep the ditch in repair; but where, through the neglect of one tenant in common, the land of the other is overflowed, the latter cannot fill up the ditch. (61)

CHAPTER 25.

CONTRACTS..

§ 132. Contracts Relating to Water.

As a general rule contracts relating to canals, ditches, water and water rights are governed and construed by the principles relating to the law of contracts. (62) There are certain matters, however, peculiar to waters and their appropriation that often

(58) Shilling v. Rominger, 4 Colo. 100 ('78); Lytle Cr. W. Co. v. Perdew, 65 Cal. 447, 4 P. 426 ('84); Santa Paula W. W. v. Peralta, 113 Cal. 38, 45 P. 168; Tucker v. Jones, 8 Mont. 225, 19 P. 571 ('88); Crowder v. McDonnell, 21 Mont. 367, 54 P. 44 ('98); Moss v. Rose, 27 Ore. 595, 41 P. 666 ('95); Biggs v. Utah D. Co., 7 Ariz. 331, 64 P. 494 ('01); Rodgers v. Pitt [Nev.], 129 Fed. 932 ('04). In order to constitute a tenancy in common in a water right, the right to a unity of possession must extend to the right of user.-City of Telluride v. Davis, 33 Colo. 355, 80 P. 1051 ('05).

(59) Meagher v. Hardenbrook, 11 Mont. 385, 28 P. 451 ('91) (60) Union Mill Co. v. Dangberg [Nev.], 81 Fed. 73 ('97); Cache La Poudre Irr. Co. v. Larimer and Weld Res. Co., 25 Colo. 144, 53 P. 318 ('98).

(61) Moss v. Rose, 27 Ore. 595, 41 P. 666 ('95). (62) See ante, $120; Irr. Companies, $119; fixing rates, $96; Anti-Royalty Act, §95.

§ 132, Contracts Relating to Water.

make it necessary to turn to the statutes and special rules of decision.

Water rights are real property, (63) and hence all contracts relating to the sale thereof come within the statute of frauds and must be in writing. (64)

CHAPTER 26.

SALES, DEEDS AND MORTGAGES.

§ 133. Selling Part-Excess-Changing Use-Incomplete Appropriation.

The right to the use of water, called a water right, (65) being a property right, (65) may be sold or otherwise transferred. An appropriator may sell all or a portion of the water which he has a right to use, (66) but he cannot sell and retain the water at the same time. (67) It has been held that a sale by the appropriator of a right to use a portion of the water appropriated by him for the irrigation of his land, does not necessarily indicate that he has appropriated more water than he actually needed. (68) It would seem, however, that unless he procured water from another source or made some radical change in farming methods or some other like event had happened to release from use on his own land the quantity of water transferred by him to another, -there may be some doubt as to the meaning or extent of this decision. An appropriation is measured by the needs of the appropriator. He cannot appropriate more water than is necessary for such of his lands as are capable of irrigation. (69) Therefore, if by continued cultivation and irrigation his lands reach

(63) (64) (65)

Ante, $129.

See post, $134, note 80.
Ante, $129.

(66) Strickler v. Colo. Springs, 16 Colo. 61, 26 P. 313 ('91); Ft. Morgan L. & C. Co. v. So. Platte D. Co., 18 Colo. 1, 30 P. 1032 ('92); Middle Cr. D. Co. v. Henry, 15 Mont. 558, 39 P. 1054 ('95); Frank v. Hicks, 4 Wyo. 502, 35 P. 475, 1025 ('94); Millheiser v. Long, 10 N. M. 99, 61 P. 111 ('00); Hall et al. v. Blackman, 8 Ida. 272, 68 P. 19 ('02).

(67) Millheiser v. Long, 10 N. M. 99, 61 P. 111 ('00). Drake v. Earhart, 2 Ida. 716. 23 P. 541 ('90). Ante, $58.

(68) (69)

AND CONVEYANCES.

the state where they require less water than in the beginning, he is only entitled to divert from the stream the quantity which he can beneficially use, and the excess should be left in the stream or ditch for the use of others. Waste will not be tolerated, (70) and it would seem that the excess if not resulting as mentioned above instead of being sold by him, should, as just suggested, revert to the public waters for the benefit of subsequent appropriators in the order of their appropriations. Such disposition if not the rule of decision, would at least be consistent with the fundamental principles of the doctrine of appropriation. In accordance with the principle that the use to which water is put is immaterial if it is beneficial, (71) it is not necessary, as long as the rights of others are not interfered with, that the purchaser of a water right should apply the water to the same uses as those of his grantor. (72) Hence, a city may purchase for municipal purposes, the rights of an appropriator for irrigation, and will succeed to the priority rights of the original appropriator. (73) An appropriator may, before the completion of his appropriation, sell his rights, and the grantee, by prosecuting the work to completion with reasonable diligence, will succeed to his grantor's rights. The grantee, however, must purchase all the rights of the grantor so that his continuation of the work will be practically the same enterprise. (74)

§ 134. Sales, Deeds and Mortgages-Statute of Frauds.

The water right being an appurtenance to the land in all states except Colorado, it will pass by a conveyance of the land without any mention of the water right, unless the right be expressly reserved in the deed, (75) and the water right will also pass

(70) Ante, $84. (71) Ante, $45. (72) Ante, $47.

(73) Strickler v. Colo. Springs, 16 Colo. 61, 26 P. 313 ('91). See Drake v. Earhart, 2 Ida. 716, 23 P. 541 ('90); Springville v. Fullmer, 7 Utah 450, 27 P. 577 ('91).

(74) Colo. Land & Water Co. v. Rocky Ford Canal, Res. L. L. & Tr. Co., 3 Colo. App. 545, 34 P. 580 ('93).

(75) See $130, note 37.

§ 134, Sales, Deeds and Mortgages-Statute of Frauds.

as an appurtenance of the ditch, without being referred to in the conveyance. In Colorado, where it is held that a water right is a distinct subject of grant and can be transferred either with or without the land, it is held to be a question of the intention of the grantor whether or not the water right was intended to be conveyed. When the deed is silent on the question, this intention is ascertained from the circumstances surrounding the transaction, and whether or not such right is or is not incident and necessary to the enjoyment of the land. (76) The right of the appropriator does not depend upon the use to which the water is put, but the use, place of use and diversion can be changed so long as the rights of others are not infringed. (77) The water right, therefore, is a property right which may exist separately from the ditch or land in connection with which it was acquired, and a conveyance of the ditch or the land does not necessarily pass the water right; either may be conveyed separately and apart from the other. (78) It may be stated as a general rule that the right to the use of water being treated as real estate its transfer should be made by deed, with all the formalities requisite to such an instrument; (79) and any contract for the conveyance of a ditch or water

See, also, Farm

(76) See cases cited, ante, $130, note 34. Inv. Co. v. Gallup, 13 Wyo. 20, 76 P. 917 ('04). (77) Ante, §§46, 47.

(78) As to necessity of intention to convey, see ante, $130; Strickler v. Colo. Springs, 16 Colo. 61, 26 P. 313 ('91); Oppenlander v. L. H. D. Co., 18 Colo. 142, 31 P. 854 ('92); Arnett v. Linhart, 21 Colo. 188, 40 P. 355 ('95); Gelwicks v. Todd, 24 Colo. 494, 52 P. 788 ('98); Cache La Poudre I. Co. v. Larimer, etc., Co., 25 Colo. 144, 53 P. 318 ('98); Crippen Tr. v. Comstock, 17 Colo. App. 89, 66 P. 1074 ('01); Wilson v. Higbee [Nev.], 62 Fed. 723 ('94); Middle Cr. D. Co. v. Henry, 15 Mont. 558, 39 P. 1054 ('95); Ada Co. Farmers' Irr. Co. v. Farmers' C. Co., 5 Ida. 793, 51 P. 990 ('98); Hard v. Boise City I. & L. Co., 9 Ida. 589, 76 P. 331 ('04); Millheiser v. Long, 10 N. M. 99, 61 P. 111 ('00).

(79) Smith v. O'Hara, 43 Cal. 371 ('72); Burnham v. Freeman, 11 Colo. 601, 19 P. 761 ('88); Child v. Whitman, 7 Colo. App. 117, 42 P. 601 ('95); Middle Cr. D. Co. v. Henry, 15 Mont. 558, 39 P. 1054 ('95). In this case a conveyance was held valid as between the parties, although not acknowledged or recorded.McDonald v. Lannen, 19 Mont. 78, 47 P. 648 ('97); Ada Co. Farmers' I. Co. v. Farmers' C. Co., 5 Ida. 793, 51 P. 990 ('98); Mattis v. Hosmer, 37 Ore. 523, 62 P. 17 ('00).