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Show THE RIPARIAN RIGHT 35 Subdivision of land-In the subdivision of tracts of riparian land, parcels often are so located as to be left without physical contiguity to the stream. The original riparian right, nevertheless, can be preserved in the detached parcels so severed from the stream if the parties to the conveyance so intend.176 When so conveyed with the land, the riparian right "is still a riparian right with all the attributes of such right, and is in strict technical language 'parcel of the land' conveyed."177 This is not the creation of a new right (which obviously would exceed the powers of the parties); it is preservation of the existing right.178 Hence, such a grant is effective as against lower riparian lands and water users.179 "They have the same right that they had before the transfer, neither more nor less." The riparian right thus preserved in a parcel of detached land passes in all subsequent conveyances of such land.180 Partition of land by decree.-When several parties have undivided interests in common in a tract of riparian land, each holding an undivided interest in the riparian right in proportion to his interest in the land, a judgment in partition of such land "is a mere severance of the unity of possession and community of interest, and does not in any other respect affect the character of the title or estate, unless it expressly so declares."181 The partition decree does not create new rights or estates in the waters of the stream to which the original undivided tract is riparian, nor does it change the character of the rights of the respective parties therein. It merely divides and apportions the preexisting rights and estates.182 The decree in partition proceedings may make appropriate provision for the preservation or allotment of riparian rights to the portions of the land which, after the subdivision, do not abut upon the stream.183 However, it is not essential to the preservation of the right that the decree of partition shall specifically allocate the riparian rights of the detached parcels. If the decree is silent as to the division of riparian rights, each parcel retains its water right; prior to the partition, each tenant in common owned a proportionate interest in all the land and the overall riparian right, and after partition he merely owns in severalty what he formerly owned in common.184 ^Copeland v. Fairview Land & Water Co., 165 Cal. 148, 161, 131 Pac. 119 (1913). In this regard, see "Severance of Riparian Right From Land-Loss of contact with stream by conveyance," infra. 171Strong v. Baldwin, 154 Cal. 150, 156-157, 97 Pac. 178 (1908). See Anaheim Union Water Co. v. Fuller, 150 Cal. 327, 331, 88 Pac. 978 (1907). 178Strong v.Baldwin, 154 Cal. 150, 157, 97 Pac. 178 (1908). 179Miller & Lux v. /. G. James Co., 179 Cal. 689, 691-692, 178 Pac. 716 (1919). 180 Strong v.Baldwin, 154 Cal. 150, 157, 97 Pac. 178 (1908). l**Rose v. Mesmer, 142 Cal. 322, 328-329, 75 Pac. 905 (1904). 182 Verdugo Canyon Water Co. v. Verdugo, 152 Cal. 655, 662-663, 93 Pac. 1021 (1908). l83Strong v. Baldwin, 154 Cal. 150, 156-157, 97 Pac. 178 (1908); Frazee v. Railroad Comm'n, 185 Cal. 690, 693, 201 Pac. 921 (1921). 1MRancho Santa Margarita v. Vail, 11 Cal. (2d) 501, 540, 81 Pac. (2d) 533 (1938). That it |
