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Show PROPERTY CHARACTERISTICS 483 mortgaged.234 A mortgage of the land with the appurtenances covers the incorporeal hereditaments annexed to the realty, and also such physical property, or rights to or in connection with them, as are used with and for the benefit of the land and are reasonably necessary for its proper enjoyment. Unless expressly reserved, the appurtenant water rights pass with the mortgage conveyance. The California Supreme Court went a step farther in holding that as an appropriative right is an incident of the land and will pass as such by a conveyance thereof, without express mention and without any reference thereto such as use of the word "appurtenances," therefore: "A conveyance of land upon a foreclosure sale must, of necessity, at least as between the parties to the mortgage, carry with it a water-right appurtenant to the land acquired and used by the mortgagor for the benefit of the land, although obtained after the execution of the mortgage and before the sale on foreclosure." [Emphasis supplied.]236 Formalities of conveyance.-(I) The general rule. As a water right is real estate, and as any interest in it therefore is perforce an interest in real estate, the water right cannot generally be transferred to another except by a written conveyance such as would convey the title to real property.237 A conveyance or an agreement to convey such an interest is within the statute of frauds and hence must be in writing.238 A Kansas statute provides that water rights (or shares in irrigation companies) may be the subject of separate transfers by deeds executed and recorded as conveyances of real estate, subject to the laws relating to the registration and recording of conveyances affecting title to real estate.239 The Texas water appropriation statute provides that every conveyance of a "ditch, canal, or reservoir, or other irrigation work, or any interest therein," shall be executed, acknowledged, and recorded in the same manner as conveyances of real estate.240 "Water right" is not specifically mentioned in »4Harris v. Chapman, 51 Idaho 283, 294-295,5 Pac. (2d) 733 (1931). a3S Yellowstone Valley Co. v. Associated Mortgage Investors, Inc., 88 Mont. 73, 82, 290 Pac. 255 (1930). Regardless of whether the right to certain spring waters was deemed part of the land on which they arose, or an appurtenance thereto, the right to such water passed by virtue of mortgage of the land, foreclosure decree, sale, and sheriff's deeds: Skinner v. Silver, 158 Oreg. 81, 97-100, 75 Pac. (2d) 21 (1938). 236 Stanislaus Water Co. v.Bachman, 152 Cal. 716, 724, 93 Pac. 858 (1908). ™Hale v. McCammon Ditch Co., 72 Idaho 478, 488, 244 Pac. (2d) 151 (1951); Gard v. Thompson, 21 Idaho 485,496, 123 Pac. 497 (1912). ™Stepp v. Williams, 52 Cal. App. 237, 253, 198 Pac. 661 (1921). 239Kans. Stat. Ann. § 42-121 (1964). In 1900, the Kansas Supreme Court held that the accumulation of water above a dam built in a navigable stream by a riparian landowner was, in a sense, a reducing of personal property to possession, so that a grant of a right to use power thereby created need not be made by deed, but could be validly made by parol: Johnston v.Bowersock, 62 Kans. 148, 161-162, 61 Pac. 740 (1900). M0Tex. Rev. Civ. Stat. Ann. art. 7571 (1954). |
