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Show 472 THE APPROPRIATIVE RIGHT were not acquired with a purchase of property "because water rights were not specifically mentioned in certain deeds."175 The Utah Supreme Court approved the statutory rule of that State that a deed in statutory form, without reservation of water, conveys whatever appurtenant rights the grantor has to the water used on the land.176 Other courts that approve the general rule also adopt the proviso that the conveyance will carry the rights appurtenant to the land unless expressly reserved from the grant.177 Another recognized exception is separate conveyance of the appurtenant water right away from the land on which the water is used.178 Likewise, where questions as to the intent of the parties have arisen, courts have held that the intent of the parties, at least where lawfully ex- pressed, must control the question of passing title to an appurtenant water right in a conveyance of the land.179 The above quotation from Wiel makes this point.180 Where a water right intended to be conveyed with land is so stated in the deed in express terms, the grantee takes that only which is expressly conveyed, and does not take any additional rights by implication.181 But in absence of language indicating a different intention on the part of the grantor, everything essential to the beneficial use and enjoyment of the property conveyed is to be considered as passing by the conveyance.182 When the deed conveying title to land does not specify the particular appurtenant water right alleged to have been conveyed with the land, or to what extent the use of water was appurtenant to it, extrinsic evidence must be resorted to in order to establish the fact.183 175Drake v. Smith, 54 Wash. (2d) 57, 61, 337 Pac. (2d) 1059 (1959). "A water right is an interest in real property appurtenant to the land and passes to the grantee when the land is conveyed." 176 Thompson v. McKinney, 91 Utah 89, 92-93, 63 Pac. (2d) 1056 (1937); Anderson v. Hamson, 50 Utah 151, 153, 167 Pac. 254 (1917). Utah Code Ann. § 73-1-11 (1968) provides that a right to the use of water appurtenant to land shall pass to the grantee of the land; but any such right or a part thereof may be reserved by the grantor in express terms in the conveyance, or it may be separately conveyed. ™Hogan v. Thrasher, 72 Mont. 318, 332, 233 Pac. 607 (1925); Russell v. Irish, 20 Idaho 194, 198-199, 118 Pac. 501 (1911). ™ Frank v. Hicks, 4 Wyo. 502, 528-529, 35 Pac. 475 (1894). This case was decided before the Wyoming Legislature changed the rule with respect to detachment of direct-flow rights from the land to which appurtenant. However, the rule as stated is applicable in most States. See, for example, Utah Code Ann. § 73-1-11 (1968). l79Lensing v. Day & Hansen Security Co., 67 Mont. 382, 384, 215 Pac. 999 (1923); Stinson v.Murray, 8 Alaska 167,174 (1930). 180 Applied in Dill v. Killip, 174 Oreg. 94, 98, 147 Pac. (2d) 896 (1944). 181Kofoed v.Bray, 69 Mont. 78, 84, 220 Pac. 532 (1923). 182 Yellowstone Valley Co. v. Associated Mortgage Investors, Inc., 88 Mont. 73, 84, 290 Pac. 255 (1930). li3Bullerdick v. Hermsmeyer, 32 Mont. 541, 550, 81 Pac. 334 (1905). |
