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Show 36 THE RIPARIAN DOCTRINE After preservation of the riparian right in detached parcels resulting from a decree in partition, a subsequent conveyance of partitioned land would carry with it the water right belonging to the particular tract conveyed.185 Partition of land by deed.-In a Texas case, a land grant owned by tenants in common was partitioned by a deed which contained a provision that all water rights and rights to use ditches on the lands were to remain forever appurtenant to the lands abutting on the creek or on the artificial ditches. It was held that the provisions of the deed of partition contemplated that the backlands should have access to water, and that this could have been with a view to watering stock only. However, the court looked to conditions that existed at the time of the partition and prior thereto, in construing the intent of the parties when they stipulated with reference to their future water rights. It was concluded that the rights safeguarded in the deed related to both irrigation and stockwatering.186 Severance of Riparian Right From Land Although the riparian right is sometimes said to be "inseparably" attached to the land itself-"part and parcel of the soil"-there are ways in which it may be severed from the land in connection with which the water right came into being. Following is a discussion of important means of severance. As various ways overlap in the classification, some repetition occurs. Reservation of right in conveyance of land.-The grantor of land through which a stream of water flows may reserve the riparian rights from the conveyance.187 It is competent for a riparian owner to convey to one person a part of his land abutting upon a stream, reserving and excepting from the grant the water rights attached to such land, and later to convey to another person not only the remaining portion of his riparian land but also the water rights so reserved and excepted from the first conveyance.188 is not necessary to describe the water rights in the complaint in the partition suit, as the description of the land included the water, see Rose v.Mesmer, 142 Cal. 322, 329, 75 Pac. 905 (1904). x*sFrazee v. Railroad Comm'n, 185 Cal. 690, 694, 201 Pac. 921 (1921). "'Stratton v. West & Bennett, 27 Tex. Civ. App. 525, 529, 66 S.W. 244 (1901, error refused). 181Doyle v. San Diego Land & Town Co., 46 Fed. 709, 711 (C.C.S.D. Cal. 1891); Walker v. Lillingston, 137 Cal. 401, 402-404, 70 Pac. 282 (1902); Watkins Land Co. v. Clements, 98 Tex. 578, 584-585, 86 S.W. 733 (1905); Benton v. Johncox, 17 Wash. 277, 281,49 Pac. 495 (1897). For uncertainties in other Texas cases, see Risien v. Brown, 73 Tex. 135, 140-142, 10 S.W. 661 (1889); Richter v. Granite Mfg. Co., 107 Tex. 58, 62-64, 174 S.W. 284 (1915); Gibson v. Carroll, 180 S.W. 630, 633-634 (Tex. Civ. App. 1915). Uncertainties were apparently disposed of in Texas Co. v. Burkett, 117 Tex. 16, 26, 296 S.W. 273 (1927). 188Forest Lakes Mutual Water Co. v. Santa Cruz Land Title Co., 98 Cal. App. 489, 495496, 277 Pac. 172 (1929). |