way. "The principal subject-matter of such a sale and purchase," says the learned court, "is the possessory right to the land, and the consequent preference over others in the purchase of such land from the government; and such a sale, followed by possession taken thereunder, vests the possessory right in the purchaser, except as against the government, and he succeeds to the rights of the settler to the possession of the land and improvements. The water right being a necessary incident to the complete enjoyment of the land, the same principle which sustains a verbal sale of the possessory right to the land will also support a verbal sale of the water right in connection therewith, so as to enable a purchaser to maintain a suit against a stranger for interfering with the same. The water, when appropriated and used for irrigation, becomes an incident to the land, and a transfer of the possessory rights thereto carries with it the water, unless expressly reserved. The general rule is that, where a party grants a thing as it is then used and enjoyed, he, by implication, grants all those easements which the grantor can convey which are necessary to the reasonable enjoyment of the granted property, and have been and are at the time of the grant used by the owner for the benefit of the granted premises; and, if the grantor wishes to reserve any right over the easement, he must reserve it expressly. Gould, Waters, § 354; Cave v. Crafts, 53 Cal. 135. This rule, we think, is as applicable to the transfer of possessory rights to public land as to any other species of property. In fact, counsel for defendant did not claim that there was evidence indicating an intent to abandon, but he claimed that the verbal sale and transfer of this water right operated, ipso facto, as an abandonment thereof, and in support of his position cited and relied on Smith v. O'Hara, 43 Cal. 371; Pom. Rip. Rights, $ 89; Gould, Waters, § 234. The statements by

Pomeroy and Gould are based upon the doctrine announced in Smith v. O'Hara. In that case the plaintiff claimed as purchaser from the prior appropriator of a ditch used for conveying water for mining purposes, and undertook to prove the sale by oral testimony. The court held that a ditch, being an interest in real estate and lying in grant, could only be conveyed by deed, but that doctrine has no application to the case before us. In this case there was no attempt to convey the ditch separate from the possessory right to the land, but only as an incident thereto, and as part of the improvements thereon. It was an appurtenant to the principal thing sold, and passed as an incident thereto. We do not at this time undertake to question the doctrine that a ditch or canal itself, used for conveying the water to a mine or elsewhere, is an interest in land that can only be transferred and conveyed as in the case of other real estate, but we deny its applicability to the facts in this case."]

In a recent decision by the supreme court of Nevada, this same rule was declared in the most general form: "Where, in a contest concerning priority, a party claiming a right to water by appropriation fails to connect himself in interest with those who first appropriated and used the waters of a stream, his own appropriation of the water must be treated as the inception of his right;" or, in other words, his right of appropriation must be dated from the time when he himself began to use the waters; he cannot link his own use onto that of the former occupants, and thus claim to be a successor to their prior rights. Their prior appropriation is virtually abandoned.1

1 Chiatovich v. Davis, 17 Nev. 133, 28 Pac. Rep. 239.

(99)

§ 61. Same; conveyance of water rights.

[The right of a riparian proprietor to the flow of a stream of water over his land may be severed from the land by grant, and where such right has been conveyed without reservation the grantor cannot maintain an action to enjoin a diversion of water from the stream.1 It is also held-and this is more to our present purpose-that the right acquired by a prior appropriation, to use the water of a stream for irrigation, is not inseparably connected with the land for the benefit of which the appropriation was made, but the right may be sold separate and apart from the land; for instance, it may be sold to a city for the use of its inhabitants.2 In the case cited, the court in Colorado derived this doctrine from the principle (now well settled by the judicial decisions in that and other states) that one who has acquired the right, by prior appropriation, to divert the waters of a stream may change the place of diversion and also the place of use, according to his necessity or interest, provided only that such change involves no injurious consequences to the rights of others. And this rule, it was said, would dispose of the theory that the water was only appropriated for a particular tract of land. and that the appropriation would not hold for any other. And, as the court further observed, "no reason is perceived why, if the place of use may be changed to a tract adjoining the one in connection with which the priority came into existence, it may not as well be changed to a piece of land at a greater distance. The principle permitting the first change to be made being established, the exercise

1 Gould v. Stafford. 91 Cal. 146, 27 Pac. Rep. 543.

2 Strickler v. City of Colorado Springs, 16 Colo. 61, 26 Pac. Rep. 313.

3 Citing Fuller v. Swan River Min. Co.. 12 Colo. 12, 19 Pac. Rep. 836. And see, infra, § 65.

of the right cannot be made to depend upon the locus of the use, provided the rights of others are not injuriously affected by the change. The authority for changing the place of use from one part of a quarter section of land to another place upon the same quarter section will permit the purchase of land elsewhere, and utilizing the water in its cultivation." These principles being taken as established, it follows, as a logical necessity, that the right to the use of the water for irrigation is a right not so inseparably connected with the land that it may not be separated therefrom. The right has been treated and held as a property right in numerous cases.1 "The authorities seem to concur in the conclusion that the priority to the use of water is a property right. To limit its transfer, as contended by appellee, would in many instances destroy much of its value. It may happen that the soil for which the original appropriation was made has been washed away and lost to the owner, as the result of a freshet or otherwise. To say, under such circumstances, that he could not sell the water right to be used upon other land would be to deprive him of all benefit from such right. We grant that the water itself is the property of the public. Its use, however, is subject to appropriation, and in this case it is conceded that the owner has the paramount right to such In our opinion this right may be transferred by sale so long as the rights of others, as in this case, are not injuriously affected thereby. If the priority to the use of water for agricultural purposes is a right of property, then the right to sell it is as essential and sacred as the right to possess and use. What difference can it make to others whether the owner of the priority in this case uses it upon his own land, or sells it to others to be used upon other

use.

1 The court here quotes from on Waters, § 234, and from § 58 of Kidd v. Laird, 15 Cal. 162, Gould this book.

lands? There is no claim of waste occurring between the present points of diversion and the place where the city is to take the water. Where a material waste results from the change, a new feature is introduced which need not be considered here. At common law water rights were declared to be the subject of sale, and although with us such rights are acquired by appropriation rather than by grant or prescription, as at common law, this certainly cannot affect the right of alienation.1 There is no controversy in the present case in reference to the mode and manner in which the right to the water may be conveyed, the contention extending further back; the claim being that the right cannot be conveyed at all, except with the land. The claim is not well founded. As we have seen, the right is the subject of property, and may be transferred accordingly; the sole limitation being that the rights of others shall not be injuriously affected by such transfer."

It has been held, however, that a person cannot claim rights in water under a contract with the prior appropriator and also as a riparian owner through subsequent purchases along the lower part of the stream.2 And a grant of the right to divert the waters of a stream, made by a pre-emptor of public lands bordering thereon, is rendered worthless by the latter's abandonment of his claim before procuring a receiver's receipt for the land.3

A deed by the owners of a stream to a corporation organized for the purpose of diverting water from the stream for the purposes of irrigation, the furnishing of water for mining and manufacturing purposes, and for supplying

1 Citing Angell, Water Courses, c. 5; Hurd v. Curtis, 7 Metc. (Mass.) 94; De Witt v. Harvey, 4 Gray, 486.

2 Alhambra Addition Water Co.

v. Mayberry, 88 Cal. 68, 25 Pac. Rep. 1101.

3 Conkling v. Pacific Imp. Co., 87 Cal. 296, 25 Pac. Rep. 399.