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Show PROPERTY CHARACTERISTICS 455 It was later held that the fact that land to which water appropriated on the public domain was taken was then unsurveyed public land did not prevent the water right from becoming appurtenant thereto.91 With respect to private lands: The appropriative right becomes appurtenant to the land on or in connection with which the use of water is made under the right.92 The water right necessary for the reasonable enjoyment of the land is an easement;93 hence, where the land cannot be used advantageously without it, the water right is an appurtenance ,94 Among various declarations of the relationship of appurtenance to appropriative rights is that of the Utah Supreme Court to the effect that: "A right to divert and use the waters of a stream, acquired by appropriation, is a hereditament appurtenant to the land for the benefit of which the appropria- tion is made."95 And another pertinent declaration in a water case is by a Texas court that:96 An appurtenance is that which belongs to another thing, but which has not belonged to it immemorially. The thing appurtenant need not be one of necessity. It may be one of convenience only; but it must be connected in use with the principal thing; in other words, "a thing is appurtenant to something else only when it stands in the relation of an incident to a principal, and is necessarily connected with the use and enjoyment of the latter."Humphreys v. McKissock, 140 U.S. 304.* * * The widespread legislative and judicial acceptance of the concept through- out the West is revealed in the ensuing discussion. (Other aspects of the general topic of appurtenance of water rights to land are discussed later in this chapter under "Elements of the Appropriative Right-Sale, Rental, or Distribution of Water.") Generally Appurtenant, but Severable Of general application in the West is the rule that an appropriative right becomes appurtenant to the land for the benefit of which the water is applied. As will appear later, in most jurisdictions the right may be severed from the land to which it became initially appurtenant and, subject to certain conditions, it may be transferred to and become simultaneously appurtenant to other land. 91 Ely w.Ferguson, 91 Cal. 187, 190, 27 Pac. 587 (1891). 92Senior v. Anderson, 138 Cal. 716, 723, 72 Pac. 349 (1903). 93 Cave v. Crafts, 53 Cal. 135, 140 (1878). See Farmer v. Ukiah Water Co., 56 Cal. 11,15 (1880). "Crookerv.Benton, 93 Cal. 365, 369, 28 Pac. 953 (1892). 9SConant v. Deep Creek & Curlew Valley In. Co., 23 Utah 627, 629-630, 66 Pac. 188 (1901). 96Hunstock v. Limburger, 115 S. W. 327, 329 (Tex. Civ. App. 1909, error refused). |