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water to cities, conveying to the grantee and its successors and assigns the right “to divert and appropriate all the waters flowing in said stream,” is a grant of the right to divert the water thereafter flowing in the stream, as against a subsequent purchaser from the grantor of land bordering on the stream.']

§ 62. Water rights as appurtenant to land.

[It is an interesting question, whether a right to divert and use the waters of a stream, acquired by appropriation, is to be regarded as appurtenant to the land for the benefit of which the appropriation was made, so as to pass by a conveyance of the land without special mention or under the general designation of “appurtenances.” In California, this question has of late years been settled in the affirmative, after a course of decisions tending more or less distinctly in that direction. In the case of Coonradt v. Hill,2 which was an action to determine the title to a ditch and the right to divert through it the waters of a stream, the defendant alleged an estoppel on the part of the plaintiff by acts and declarations by means of which defendant was induced to purchase the land in the belief that the ditch was appurtenant thereto. And it was held that evidence of the convenience and necessity of the ditch to defendant's farm was admissible, as tending to show that the water right was appurtenant to the land and passed to defendant by a grant of the land. In a later case, it appeared that a land and water company had conveyed a tract of land through which ran a ditch, reserving the ditch and a strip of land ten feet wide on each side of it, and also the right to enter on the lands for the purpose of making repairs, and to tunnel or in any manner develop the waters on the lands. The reservation provided that the grantees were not to use any of the water in the ditch, nor use any water on the land, except for the purpose of irrigation and for domestic use. It was held that the rights reserved were appurtenant to the ditch and water rights, and passed by grant from the company to a vendee, although the reservation contained no power of assignment or words of inheritance. Finally, the attention of the court having been directed to the statutory provision in that state that "a thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a way or water-course, or of a passage for light, air, or heat from or across the land of another,"2 it was held that where a land-owner appropriated water, and brought it on his land, and the land could not be advantageously used without the water, the fact that the license to convey the water over the premises of another was revocable did not prevent the water right from passing as appurtenant to the land.3

1 Doyle v. San Diego Land Co., 46 Fed. Rep. 709. See, also, as further illustrating these principles, San Diego Flume Co. v,

Chase. 87 Cal. 561, 25 Pac. Rep.
756; Dorris v. Sullivan, 90 Cal. 279,
27 Pac. Rep. 216.
279 Cal. 587, 21 Pac. Rep. 1099.

In the state of Colorado, on the other hand, the courts are by no means willing to accept the doctrine now settled in California. In a late case in the former state, in which this question arose, the plaintiffs claimed the right to certain water under an appropriation made by the persons from whom they took, as grantees, the land for which the appropriation was made. They claimed that by such appropriation the right to the use of the water became an incident of the land, and passed to them by the deeds of conveyance under the term “appurtenances.” “At common law," said the court, “the riparian owner is vested with certain rights in the water of a natural stream flowing through his land, and such rights pass by a conveyance of the land to his grantee, unless specially reserved. It is seriously claimed that this familiar principle of the common law in reference to natural streams applies also to artificial streams designed for purposes of irrigation. Let us see what legal basis there is for such claim. Upon examination, we find few points of analogy and many points of difference between water rights at common law and water rights under the constitution of this state.” Hereupon the court proceeded to indicate the essential particulars in which these differences were found to exist, and then proceeded as follows: "Where a party has constructed an irrigating ditch, and acquired the right to the use of water for the irrigation of his lands through such ditch, he may, undoubtedly, in connection with the sale and conveyance of the land, also sell and convey such water right without special words for that purpose inserted in the deed of conveyance.

3 Crooker v. Benton, 93 Cal. 365, 28 Pac. Rep. 953.

1 Painter v. Pasadena Land Co., 91 Cal. 74, 27 Pac. Rep. 539. 2 Civil Code Cal. $ 662.

But how shall such water right be conveyed? Counsel for appellants insist that it passes to the grantee by virtue of the word 'appurtenances in the ordinary deed, unless specially reserved. Certainly a ditch located on the land described in the conveyance would pass by an ordinary deed, not as an appurtenance, but as parcel of the land itself. But there is a manifest distinction between an irrigating ditch, as a mere artificial watercourse, and the right to the use of water from a natural stream to be carried through such ditch. In Yunker V. Nichols, 1 Colo. 551, it was held that the right to convey water over the land of another for purposes of irrigation may be conferred by verbal agreement, notwithstanding such right was, at common law, an interest in real estate, and so subject to the statute of frauds. In Burnham v. Freeman, 11 Colo. 606, 19 Pac. Rep. 761, it is said of a private irrigating ditch belonging to individuals, and not to an incorporated company, that the law recognizes but two ways of acquiring, by purchase, an ownership interest in such a ditch. One is by deed or prescription, which presupposes a grant, and the other is by condemnation. An interest in such a ditch is an interest in realty. It cannot pass by a mere verbal sale.' These two cases may, perhaps, be reconciled or distinguished. It is claimed that the later case is decisive of the present controversy. we do not rest the decision of this case upon the ground that the right to the use of water in this state for irrigation may not, under some circumstances, be acquired by parol, nor upon the ground that such right may not pass to the grantee of land, under certain circumstances, without special words in the deed conveying the land, or other deed for that purpose. In the present case it is clear that appellants have never acquired a valid title to the water rights in controversy. Not even a verbal agreement therefor is established by the evidence. Such water rights did not pass to appellants as an appurtenance to the land by virtue of their several deeds of conveyance. Even such rights could, under some circumstances, be considered appurtenances to the land, the evidence in this case clearly shows that Frederick Baun, as the original owner, had severed such rights long before the inception of appellants' title.”'1

In Minnesota, it is held that a riparian owner may grant a part of his estate, not abutting on the stream, and as appurtenant thereto a right to draw water from the stream through his remaining land, and for any diversion of the

10ppenlander V. Left Hand Ditch Co., (Colo.) 31 Pac. Rep. 854. See, also, Bloom v. West, (Colo.)

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natural flow of the stream disturbing such right the gran. tee may maintain an action.']

§ 63. Tenancy in common.

Wherever ditches or other structures for diverting and appropriating water belong to two or more proprietors, such owners are, in the absence of special agreements to the contrary, tenants in common of the ditch, and of the water rights connected therewith, and their proprietary rights are governed by the rules of law regulating tenancy in common.” (But persons claiming rights in the waters of a stream, derived from the same original proprietors, are not necessarily tenants in common; and a convention inter sese of the owners as to the use of all the waters appropriated, by or under which the water is to be used for recurring periods of time by each, will not make them tenants in common.3

Of tenants in common, each has a right to enter upon and occupy the whole of the common property, and every part thereof, and may recover the whole thereof from a trespasser; and an arrangement as to periods for the use of the water, among the co-tenants, affects them only, and is for their convenience, and is no defense to an action of trespass against a third party by one of the co-tenants. In the case where this principle was laid down, Thornton, J., observed: “It is said that the waters were appropriated severally by those who did appropriate them. Concede this to be so, and we do not perceive that it makes any difference. If they are tenants in common of the water, such tenants and each of them are tenants seized per my and not per tout, and entitled to the possession of the whole. This must be so, because no one of them can cer

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1 St. Anthony Falls Water. Pow. er Co. v. City of Minneapolis, 41 Minn, 270, 43 N. W. Rep. 56.

2 Bradley v. Harkness, 26 Cal. 69.

3 Lytle Creek Water Co. v. Perdew, 65 Cal. 447, 2 Pac. Rep. 732.

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