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Show 476 THE APPROPRIATIVE RIGHT whole of a parcel-may convey the land with an express reservation of the water right from the conveyance.202 Reservation of the appurtenant water right in express terms in conveyances of the land involved is recognized in the water rights statutes of Kansas and Utah.203 The New Mexico statute provides that transfer of title to land in any manner whatsoever shall carry with it all rights to the use of water appurtenant thereto for irrigation purposes, "unless previously alienated in the manner provided by law."204 Conveyance of water right separate and apart from the land.-"The owner of land with an appurtenant water right may, by appropriate conveyance, convey the land to one person and the water right to another."205 In such case, the right becomes appurtenant to the land to which transferred.206 "It is settled beyond dispute that a water right may be sold and transferred and its place of use changed, when such change does not injure the rights of others."207 And more recently, as above noted, the Colorado Supreme Court reaffirmed the principles that (a) a water right is a property right, sepa- rate and apart from the land on which it is used; (b) the land for which the water was appropriated or on which it has been used may be con- veyed or held without the water; and (c) the water may be conveyed or held without the land.208 Of course, in the States that prescribe statutory procedures for transferring the place of use of water, as most of them do, conveyances apart from the land would be ineffective without conformance to the water transfer statute. These statutes usually require State administrative approval, which is conditioned, on avoidance of injury to other water rights. And even if statutory formalities are not prescribed, no change will be sanctioned by the courts if material injury to others results or is threatened. In Utah, where the water rights statute provides that an appurtenant right to the use of water, or any part thereof, may be separately conveyed from the 202Locke v. Yorba In. Co., 35 Cal. (2d) 205, 209-211, 217 Pac. (2d) 425 (1950); Aorris v. Chapman, 51 Idaho 283, 294-295, 5 Pac. (2d) 733 (1931); Kofoed v.Bray, 69 Mont. 78, 84, 220 Pac. 532 (1923). The Colorado Supreme Court observed in 1951 that land for which water was appropriated or on which it has been used may be conveyed or held without the water, and the water may be conveyed or held without the land; or any part of the land may be conveyed together with any part of the water right and the remainder be retained: Nielson v. Newmyer, 123 Colo. 189, 228 Pac. (2d) 456, 458 (1951). 203Kans. Stat. Ann. § 42-121 (1964); Utah Code Ann. § 73-1-11 (1968). 204 N. Mex. Stat. Ann. § 75-5-21 (1968). 205 Yellowstone Valley Co. v. Associated Mortgage Investors, Inc., 88 Mont. 73, 84, 290 Pac. 255 (1930). 206In re Robinson, 61 Idaho 462, 469, 103 Pac. (2d) 693 (1940). 20nHaney \.Neace-Stark Co., 109 Oreg. 93, 116, 216 Pac. 757 (1923). 20tNielson v. Newmyer, 123 Colo. 189, 228 Pac. (2d) 456, 458 (1951). |
