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Show 468 THE APPROPRIATIVE RIGHT conditions relating to detriment to existing rights and approval of the State Engineer are included.162 The Wyoming statute declaring that water rights for the natural unstored flow of a stream cannot be detached from the lands, place, or purpose for which they are acquired, with various exceptions, is noted above.163 Conveyance of Title to Appropriative Right Sale and Assignment of Water Right An appropriative water right is "a distinct subject of grant."164 Early in the development of California water law, it was established that the right to use water by priority of appropriation, "as a substantive and valuable prop- erty, * * * may be transferred like other property."165 Various limitations upon the exercise of this right of sale and assignment have been disclosed above in connection with the general topic of appurten- ance and will be further discussed below. But the basic right of ownership and divestiture of ownership was so well established in the early development of the appropriation doctrine in the West, and so consistently confirmed, as to be axiomatic. In fact, in a case in which certain parties who owned water rights and placer-mining lands covenanted among themselves that none of them should sell his interest in the water rights or make any compromise or settlement with anyone attempting to take possession of them, except with written consent of all the others, the Montana Supreme Court held that such a contract was against public policy.166 It is well to emphasize here that the assignability of a water right and the transfer of place of use are altogether different things. This is true, even though they may be involved in the same transaction. Appurtenance of the right has no bearing upon its assignability if the place of use is not changed; but in a transfer of place of use, appurtenance may be involved. For example, the owner of an appropriative water right and of the land on or in connection with which the water is being used may sell both land and water right, whether appurtenant or nonappurtenant, to someone else. If the purchaser possesses the qualifications imposed in the particular jurisdiction 162 N. Mex. Stat. Ann. § 75-5-22 (1968). 163 At note 140. 164Arnett v. Linhart, 21 Colo. 188, 190, 40 Pac. 355 (1895); Me/sow v.Newmyer, 123 Colo. 189, 192-193, 228 Pac. (2d) 456 (1951). 165McDonald v. Bear River & Auburn Water & Min. Co., 13 Cal. 220, 232-233 (1859). "Under the law of this state as established at the beginning, the water-right which a person gains by diversion from a stream for a beneficial use is a private right, a right subject to ownership and disposition by him, as in the case of other private property. All the decisions recognize it as such," Thayer v. California Development Co., 164 Cal. 117,125, 128 Pac. 21(1912). 166Ford v. Gregson, 7 Mont. 89, 93-94, 98, 14 Pac. 659 (1887). |