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Show 470 THE APPROPRIATIVE RIGHT viz: (a) Whether the water-right is an appurtenance; and (b) whether, being such, it was intended to pass. Both of these are questions of fact in each case. Although, as shown earlier under "Appurtenance of Water Right to Land," the appropriative right is generally-but not invariably-considered to be appurtenant or attached to the place of use, either by statutory declaration or rule of the courts, or both, yet it is not such an inseparable appurtenance that it cannot be alienated from the place of use either voluntarily by the holder of the right or, under certain circumstances, against his will. Some details of the situation in the West as disclosed by statutes and court decisions follow. (2) The water right statutes of several States contain provisions concerning the passing of appurtenant water rights with conveyances of the land.171 Thus, in Kansas, under one statute, a water right is appurtenant to the place on which established by use of water thereon and it passes with every conveyance of the land whether mentioned in the deed or not, unless expressly excepted therefrom. Under the other law more recently enacted, the water right passes as an appurtenance to the land of use with a conveyance of such land by deed, lease, will, or other voluntary disposal, or by inheritance. In Idaho: (a) Every water right confirmed under the statute, or by any court decree, shall become appurtenant to and pass with a conveyance of the land for which the right was granted, (b) Irrigation water rights allotted in a statutory adjudication become a part of the land and pass with con- veyance thereof. In North Dakota, any conditional or perfected water appropriation permit for irrigation purposes shall be transferred only with the approval of the State engineer. Any conditional or perfected water appropriation permit may also be assigned, with the approval of the State engineer, to other land owned by the water permit holder. The transfer of title to land in whatever manner shall carry with it all rights to use the appurtenant water for irrigation purposes unless such rights to use water have been severed according to the statute. Oklahoma and South Dakota provide that: (a) No right to appropriate water for irrigation purposes shall be assigned or the ownership in any way transferred apart from the land to which it is appurtenant except in the manner expressly provided by law. (b) Transfer of title to land "in any manner" shall carry with it all rights to the use of water appurtenant thereto for irrigation purposes. New Mexico conforms to the same pattern as Oklahoma and South 171 Idaho Code Ann. §§ 42-220 (1948) and -1402 (Supp. 1969); Kans. Stat. Ann. §§ 42-121 (1964) and 82a-701(g) (1969); N. Mex. Stat. Ann. § 75-5-21 (1968); N. Dak. Cent. Code Ann. § 61-04-15 (Supp. 1969); Okla. Stat. Ann. tit. 82, § 27 (1970); S. Dak. Comp. Laws Ann. § 46-5-33 (1967); Utah Code Ann. § 73-1-11 (1968). |