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Show PROPERTY CHARACTERISTICS 471 Dakota but with two variations, thus: in (a) "water for storage reservoirs" is excepted; and at the end of (b) there is added "unless previously alienated in the manner provided by law." The Utah statute declares that a right to the use of water appurtenant to land shall pass to the grantee of such land, unless (a) the right or a part of it is reserved by the grantor in express terms in the conveyance, or (b) the water right is separately conveyed. It is true that these specific statutory sections, other than as stated, contain no exceptions to the flat declaration that an appurtenant water right shall pass with the land in a conveyance thereof. However, all these statutes contain other sections authorizing an appropriator to change the place of use of water under his appropriative right, subject to prescribed conditions, in which case the right ceases to be an appurtenance to the land from which conveyed and becomes simultaneously appurtenant to the new tract. (See, in chapter 9, "Change in Exercise of Water Right.") In other words, the statutory directive that the appurtenant right shall pass with conveyance of the land does not propound an inflexible rule. It states a principle of general ap- plication, subject to equally authoritative exceptions provided elsewhere in the statute. Thus construed, the provisions are not in hopeless con- flict. (3) Numerous controversies over conveyances of lands on which water rights were exercised have been decided in the western courts. The general principle stated in these statutes has also been acknowledged judicially. "Whoever grants a thing grants by implication that which is necessary to the beneficial use and enjoyment of the thing granted," including water rights.172 Early in the century, the Nebraska Supreme Court construed the water appropriation statute as having adopted such a policy.173 It was said to be the rule that appurtenances to land, including water rights, pass by a deed for the land without being especially mentioned.174 In a 1959 case, the Washington Supreme Court rejected a contention that water rights mFrank v. Hicks, 4 Wyo. 502, 526, 35 Pac. 475 (1894). Where water has been appropriated for use on certain land, and the land could not be used advantageously without it, the water right was an adjunct to the land and passed in a conveyance as appurtenant to the land: Crooker v.Benton, 93 Cal. 365, 369, 28 Pac. 953 (1892). "In the first place, it is well established that a water right is an appurtenance to the land on which it has been used and will pass by conveyance of the land." Russell v. Irish, 20 Idaho 194,198,118 Pac. 501 (1911). 173 By such policy, "the right to use the water shall not be granted separate from the land to which it is to be applied, and that the right to use the water should attach to the land, and, when the land is sold, be sold with it." Farmers' In. Dist. v. Frank, 72 Nebr. 136, 138-139,100 N. W. 286 (1904). 11AHogan v. Thrasher, 72 Mont. 318, 332, 233 Pac. 607 (1925); "Without even a mention thereof," Day v. Buckeye Water Conservation & Drainage Dist., 28 Ariz. 466, 478, 237 Pac. 636 (1925); Coventon v. Seufert, 23 Oreg. 548, 553-554, 32 Pac. 508 (1893). |