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Show PROPERTY CHARACTERISTICS 475 But use of the word "appurtenances" is not in all cases necessary. An easement that is necessary for the reasonable enjoyment of the land may pass in a conveyance of the land without mention of the water right and without any reference thereto.197 In several cases, the rule has been stated that where the right to the use of water exists in favor of land conveyed by deed, and without which the land would be valueless or of much less value, and which constituted perhaps the principal inducement for the purchase, the water right will pass by deed without use of the word "appurtenances." This is based on the maxim of the law that "whoever grants a thing is supposed also tacitly to grant that without which the grant would be of no avail."198 This includes water rights. On the other hand, as stated under the immediately preceding sub topic, the intent of the parties if clearly expressed, or determined, is held in various cases to control the question of passing of title to an appurtenant water right. So far as a positive intention in use of the term "appurtenances" is concerned, "A water right which is used in irrigating lands may pass as a grant of the lands themselves, under the word 'appurtenances', if such was the intention of the grantor, and of this intention there is not the shadow of a doubt in this case."199 And as to a negative intent, a deed of land together with the appurtenances would carry with it the water right appurtenant to the land at the time of conveyance, unless specifically reserved in the deed "or it could be clearly shown that it was known to both parties that the water right was not intended to be conveyed."200 When a deed to land with its appurtenances describes the water rights that are conveyed in connection with the land, there can be no implication that other water rights not so described were intended by the parties to be included by reason of the appurtenances clause.201 Reservation of water right in conveyance of land. -In various jurisdictions there is express recognition of the rule that a grantor of land to which a water right is appurtenant-unless the right has become inseparably attached to the 191 Stanislaus Water Co. v.Bachman, 152 Cal. 716, 724, 93 Pac. 858 (1908). 198Simmons v. Winters, 21 Oreg. 35, 44,27 Pac. 7 (1891). "Whoever grants a thing grants by implication that which is necessary to the beneficial use and enjoyment of the thing granted." Frank v. Hicks, 4 Wyo. 502, 526, 35 Pac. 475 (1894). 199King v. Ackroyd, 28 Colo. 488, 494, 66 Pac. 906 (1901). 200Russell v.Irish, 20 Idaho 194, 198-199,118 Pac. 501 (1911). 201 Paddock v. Clark, 22 Idaho 498, 510, 126 Pac. 1053 (1912). It was held subsequently, by reference to Paddock v. Clark, that the general appurtenances clause in each of the deeds in litigation did not enlarge the specific water right described therein: Harris v. Chapman, 51 Idaho 283, 295, 5 Pac. (2d) 733 (1931). Where, in conveyance of land, a part only of the appurtenant water right is described and specified as being conveyed therewith, such specific designation destroys any presumption of intention to convey the remainder: Nielson v. Newmyer, 123 Colo. 189, 228 Pac. (2d) 456, 458^59 (1951). |