83 



except that the ditches are named. This woidd not, however, change 

 the nature of the right. 



The same principle, that is, that the appropriator is entitled to 

 enouo-h water for a specified area, is contained in the law adopted in 

 18U0. There is, however, the limitation that this use shall not exceed 

 1 cubic foot per second for 70 acres. The board of control has uni- 

 forndy held that the rights acquired since 1890 are attached to partic- 

 ular tracts of land. This ruling has, however, been reversed by the 

 supreme court of the State in the recent case of Johnston v. Little 

 Horse Creek Irrigating Company." A ditch company which had 

 been awarded a right by the board of control sold a half interest in 

 the right awarded to it, and a third party, whose rights were later 

 than those of the seller but acquired prior to the sale, attacked the 

 transfer on the ground that under the laws of Wvominji' a water rifflit 

 is attached to the land and can not be transferred apart from the land. 

 Regarding this contention the court saj^s : 



We are aware that notwithstanding the expressions and decisions in the cases 

 above mentioned, which decisions were rendered in 1894, prior to the execution 

 of the deed in question, there has existed in tlie minds of the administrative 

 officers of tlie State cliarged witli the execution of the laws governing the appro- 

 priation and distribution of water an opinion that, by reason of some provisions 

 of our statutes, uulilie the statutory provisions prevailiug in most of the other 

 arid States, water appropriated for the irrigation of land becomes not only ap- 

 purtenant thereto, but inseparably connected therewith, and therefore incapable 

 of transfer or conveyance separate from the land ; and the opinion, we under- 

 stand, has prevailed among such officers that in the cases aforesaid the effect 

 of our peculiar statutory provisions was not considered. In view of the fact 

 that such decisions were rendered before the conveyance in tjuestion. and that 

 the parties presumably relied thereon in granting and receiving the conveyance, 

 the law ought to be found very clear to justify the court at this time in over- 

 ruling them and holding the transfer void. 



It is not denied, nor can it be, that it has uniforndy been held in this country, 

 wherever the doctrine of prior approi»riatiou is recognized, that a water right 

 obtaineel by and for the irrigation of land may be sold separate therefrom. 

 (Gould on Waters, sec. 234; Kinney on Irr., sees. 2G4, 265, and cases cited; 

 Long on Irr., sec. 79; 3 Farnham on Water and Water Rights, sees. (j43, (i79.) 

 Mr. Farnham says, in section (ITO of his work, above cited : " The right acquired 

 by an appropriation of water being a property right, it is subject to trans- 

 fer the same as any other species of property ; and this transfer may be 

 separate from the land upon which it was intended to be used. And this sale 

 may include all of the right to which the vendor is entitled, or it may be 

 limited to a portion of it." And in section G4.'> the same author .says : " lUit 

 there is no reason why it should remain attached to the land in connection with 

 which it was first used, and therefore the rule is that it may be sold separate 

 from the land." 



As an appropriator of water obtains by his appropriation that only of which 

 he makes a beneficial use, it necessarily follows that he can not sell surplus 

 water which he does not need, while retaining his original appropriation, and 



a 79 Pac, 22. 



