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Show 474 THE APPROPRIATIVE RIGHT Questions of conveyance of land on which water had been used by trespassers were involved in a few cases. The Nevada Supreme Court held that the use of water on land by a trespasser did not make the water appurtenant to the land, hence such use did not inure to the benefit of one who subsequently acquired valid title to the land.191 Later, the California Supreme Court conceded the proposition, based on the Nevada decision, that the use of water by a trespasser does not make the water appurtenant to the land on which it is wrongfully used. "But," said the California court, "it does not follow from this that the use of water upon land to which it is already appurtenant, by one who is a trespasser thereon, will give him such a right in the water as that he may thereafter divert it from the land, or, upon being ejected therefrom, convey to a stranger a legal title in the water or in the use thereof."192 Under the circumstances of two cases, on the other hand, the Oregon Supreme Court took a different view. In the first decision, the court sustained the validity, of an appropriation of water initiated by a trespasser on private land, the trespasser having conveyed his interest subsequently to the lawful lessee thereof. Later the court upheld a sale of improvements and water rights initiated by squatters on State land, the sale being made to one who later acquired legal title to the land.193 A discussion of initiation of appropriative rights in trespass appears in chapter 7 "The Land Factor in Appropriating Water." Conveyance of land together with appurtenances.-It is a general rule, as expressed in a fairly early California water case, that a thing used by right with land for its benefit, such as a water right, is an appurtenance thereto and passes with the land in a conveyance of the land together with its appurtenances.194 Such a conveyance of land "with appurtenances" operates without any further express grant of a water right to convey to the grantee a water right appropriated, owned, and used by the grantor and necessary for the proper irrigation of the land granted.195 A Texas court of civil appeals, in hold- ing to the same effect, cautioned that: "The word 'appurtenances' in a deed covers only what is legally appurtenant to the land described. It does not, without particular mention, convey any rights which do not naturally and necessarily belong to the thing granted in the hands of the grantor."196 191 Smith v. Logan, 18 Nev. 149, 154, 1 Pac. 678 (1883). 192Alta Land & Water Co. v. Hancock, 85 Cal. 219, 228-229, 24 Pac. 645 (1890). 193Seaweard v. Pacific Livestock Co., 49 Oreg. 157, 161-163, 88 Pac. 963 (1907); Campbell v. Walker, 137 Oreg. 375, 385, 2 Pac. (2d) 912 (1931). 194Farmer v. Ukiah Water Co., 56 Cal. 11, 14-15 (1880). 195 Tucker v. Jones, 8 Mont. 225, 231-232, 19 Pac. 571 (1888);Beisell v. Wood, 182 Oreg. 66, 72-73, 185 Pac. (2d) 570 (1947). 196Hunstock v. Limburger, 115 S. W. 327, 329 (Tex. Civ. App. 1909, error refused.). |