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Show TEXAS 709 3.3 Changes, Sales, and Transfers Riparian rights, as incidents to land ownership, pass with a con- veyance of the riparian land. In Texas the riparian owner may re- serve his riparian rights in conveying title, at least if he has other riparian land on which the water rights may be exercised.48 An appropriation right, whether evidenced by posting of notice, a certi- fied filing, or a permit, is in the nature of an incorporeal interest in land and may be transferred as a real property interest. Moreover, there is some indication that a transfer carries with it the incidental right to change the place or purpose of use to any lawful place or purpose other than that designated in the original appropriation.49 Actually, these are separate problems.50 These conclusions are fortified by sections in the general chapter dealing with the appropriation system. In section 5.002, containing definitions of terms, the new revision commission has defined the term "water right" to mean "a right acquired under the laws of this State to impound, divert, or use State water * * *." This definition appears to include riparian as well as appropriation rights and was borrowed from the 1967 Water Rights Adjudication Act.61 The new definition is admittedly broader than the original definition of "water right" in the 1917 Irrigation Act which included only certi- fied filings and permits. The re visor felt the new definition was justified since the term is used in only one section other than the Adjudication Act. That sec- tion (5.040), originally applicable only to rights acquired by land- owners adjoining canals, ditches, and reservoirs under a contract with a water supplier, now presumably applies to riparian and ap- propriation rights as well as ditch contracts. It provides that a "permanent water right is an easement and passes with the title to land." Whether the revisor's new definition operates as a substantive change in section 5.040 is a debatable matter. A written instrument conveying a permanent water right may be recorded in the same manner as other conveyances of land. 3.4 Loss of Bights Since 1913 an appropriation right could be revoked only by proof of willful abandonment for a period of 3 years.52 This was construed to require the showing of a subjective intent to abandon as well as nonuse,53 making it difficult to prove forfeiture. In 1957, the legis- lature authorized the revocation of permits or certified filings issued 10 years prior to August 21, 1957, or issued 10 years prior to any proceedings brought for the purpose of cancellation.54 The ground for revocation is nonuse for 10 consecutive years, which raises a presumption of abandonment. The water rights commission has inaugurated a vigorous cancella- tion program in order to obtain optimum beneficial utilization of «Watkins Land Co. v. Clements, 98 Tex. 578, 86 S.W. 733 (1905) ; W. Hutchins, note 1, p. 2, at 312-21. 49 Clark v. Briscoe Irr. Co., 200 S.W. 2d 674, 679 (Tex. Civ. App. 1947). 60 W. Hutchins, note 3, at 226. 61 See revisor's note to sec. 5.002. 62 Sec. 5.030. 63 City of Anson v. Arnett, 250 S.W. 2d 450 (Tex. Civ. App. 1952) Writ ref'd, n.r.e. "Sees. 5.171 to 5.186. |
