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Show PROPERTY CHARACTERISTICS 469 upon intending appropriators, he simply replaces the former owner, and there is no change in place of use. And in States that sanction changes in place of use-as most of them do (see, in chapter 9, "Change in Exercise of Water Right")-the original owner, whether or not he sells the original land may, if properly authorized, transfer the use of the water right to other land that he possesses. On the other hand, the original owner may retain the original land, while selling the water right to someone else who, if properly authorized, changes the place of use to other land of his own possession. One who thus buys an appropriative right separate from the land on or in connection with which it is being exercised, with the intention of moving the water right elsewhere, must comply with whatever formalities are prescribed by the enabling State law for both (1) assignment of the water right and (2) transfer of the place of use. The problem of appurtenance in connection with such a properly authorized and executed transaction is solved by application of a legal device-simultaneous detachment of the water right from one tract of land and transferance of its appurtenance to another tract. Some Aspects of Conveyance of Appropriative Titles Conveyance of possessory rights on the public domain.-The earliest transfers of appropriative rights that appeared in western decisions related to possessory rights on the public domain.167 Such appropriative water rights could be "held, granted, abandoned or lost by the same means as a right of the same character issuing out of lands to which a private title exists."168 Except as against the Government, a settler in good faith might convey his possessory interest in the land and in the water right thereto, by voluntary surrender to one who takes possession from him; and the transferee would become vested with all the right his predecessor had in the premises.169 Conveyance of land on or in connection with which water rights are exercised.-(\) This situation was thus summed up by Weil in 1911:170 It is well settled that a water-right may pass with land as an ap- purtenance thereto, or as a parcel thereof, but not necessarily so; and whether a water-right passes as an appurtenance involves two questions, 167 See Stephens v. Mansfield, 11 Cal. 363, 365-366 (1858); McDonald v. Bear River & Auburn Water & Min. Co., 13 Cal. 220, 233 (1859). 168 Union Water Co. v. Crary, 25 Cal. 504, 509 (1864). 169Hindman v. Rizor, 21 Oreg. 112, 116-118, 27 Pac. 13 (1891); low \.Rizor, 25 Oreg. 551, 555-556, 37 Pac. 82 (1894). See also Brown v. Newell, 12 Idaho 166, 170-173, 85 Pac. 385 (1906); Osnes Livestock Co. v. Warren, 103 Mont. 284, 303-304, 62 Pac. (2d) 206 (1936); First State Bank of Alamogordo v. McNew, 33 N. Mex. 414, 423-424, 427^29, 269 Pac. 56 (1928). 170Wiel, S\C, "Water Rights in the Western States," 3d ed., vol. 1, § 550 (1911). Mr. Wiel > commented extensively on various ramifications of this subject. |