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Show PROPERTY CHARACTERISTICS 461 users of the water; they never became appurtenant to the lands of the shareholders.129 (9) Texas. The appropriative right is an incorporeal hereditament appur- tenant to the land for the benefit of which the appropriation was made, and it is therefore a part of the freehold.130 (10) Utah. Essential to attachment of the appropriative right as an appurtenance to the land for the use of which the appropriation was made are the facts that (a) the use of the water is beneficial to the land, and (b) it is necessary to the use and enjoyment of such land.131 It is not the water itself that becomes an appurtenance; it is the right to take and use the water that sustains this relation.132 In Utah, the general question of appurtenance of mutual irrigation company stock to land and of the water rights represented by such shares of corporate stock has long been of major importance, owing to the outstanding place of such organizations in the agricultural development and irrigation economy of this State.133 Whether a water right evidenced by such corporate shares is appurtenant to the land on which the water is used is a question of fact. The Utah water rights statute contains a provision which, in its present form, provides that water rights shall be transferred by deed in substantially the same manner as real estate, except when they are represented by shares of stock in a corporation, "in which case water shall not be deemed to be appurtenant to the land."134 The effect of the 1943 enactment,135 which added the quoted phrase, as construed by the Utah Supreme Court, was to establish a rebuttable presumption that a water right represented by corporate shares did not pass to the grantee as an appurtenance to the land on which used, but that the grantee could overcome such presumption by clear and convincing evidence that the water right in fact was appurtenant and that the grantor intended to transfer it with the land, even though not expressly mentioned in the deed. In other words, the amendment made water rights represented by such stock "presumably not appurtenant."136 The foregoing construction was approved in a subsequent Utah case. In this decision, the majority of the court held that a purchaser of land failed to establish by clear and convincing evidence that the water right in controversy (owned by the grantee at the time of the sale but not mentioned in the deed) 129Butte County v.Lovinger, 64 S. Dak. 200, 209-213, 266 N. W. 127 (1936). 130 Lakeside In. Co. v.Markhamlrr. Co., 116 Tex. 65, 74-77, 285 S. W. 593 (1926). 131 Thompson v.McKinney, 91 Utah 89, 93-98, 63 Pac. (2d) 1056 (1937). 132Cortella v. Salt Lake City, 93 Utah 236, 247, 72 Pac. (2d) 630 (1937). 133Hutchins, Wells A., "Mutual Irrigation Companies in California and Utah," U. S. Farm Credit Admin., Coop. Div. Bull. 8 (1936). 134UtahCode Ann. § 73-1-10 (1968). 135Utah Laws 1943, ch. 105, § 1. 136Brimm v. Cache Valley Banking Co., 2 Utah (2d) 93, 99-100, 269 Pac. (2d) 859 (1954). |
