190 I HE IRRIGATION AGE, 



notice to the plaintiff of a secret agreement between the predecessor 

 in title and the defendant modifying the rights as created by the deed,, 

 because the plaintiff had properly regarded such acts as indicative 

 merely of an intention to use the water as junior appropriator, and 

 held that a water right used in irrigating lands passes by a convey- 

 ance of the lands under the term "appurtenances" if the grantor so 

 intends; and where such is the intention the grantee may maintain an 

 action to quiet title to such right. 



Also defendant's deed to plaintiff's predecessor in title creating 

 water rights for irrigation purposes gave to the plaintiff a priority of 

 right and the grantor retained the rights of a junior appropriator, it 

 was held that the plaintiff had the right to change the place of using 

 the water, and even to give it to third persons in exchange of water 

 at another point, so long as defendant's rights as junior appropriator 

 are not affected. (King v. Ackroyd (Colo.), 66 Pac. Rep,, 906.) 



A water right, though appurtenant to land, may be conveyed with, 

 or without the land. (Crippen v. Comstock (Cal.), 66 Pac. Rep., 

 1,074.) 



WHAT MAY NOT BE APPROPRIATED. 



The Supreme Court of Nevada has decided that where all the 

 waters flowing through a tunnel are derived from drainage of a mine 

 and of the country between the mine and the mouth of the tunnel, 

 and from pumpings into the tunnel from lower levels and the water 

 which has been used in the mine for electrical purposes, such waters 

 are not subject to appropriation because they are not a natural stream 

 passing through the tunnel. (Dec. 17. Cardelli v. Comstock Tunnel 

 Co., 66 Pac. Rep., 950.) 



And in Arizona it is held that a corporation not the owner or pos 

 sessor of arable or irrigable land does not become the appropriator or 

 owner of water diverted from a stream by a dam, canal or other con- 

 duit. (Slosser v. Salt Riv. Val. Canal Co., 65 Pac. Rep., 332.) 



PRIOR APPROPRIATION. 



The right to the water of a non navigable stream for irrigationi 

 purposes may be obtained by prior appropriation, though the stream 

 IB not tapped on any portion of the public domain but on the land of 

 the person making the appropriation. But the right of prior appro- 

 priation is limited. The following case was recently decided in Ore- 

 gon: Plaintiff sued to enjoin defendant from diverting the waters of 

 a stream which plaintiff claimed, by reason of prior appropriation, 

 for irrigation. It appeared that subsequent to plaintiff's appropria- 

 tion he had enlarged the area of the land irrigated, and had irrigated 

 the additional land by water from other streams. It was held that 

 plaintiff was entitled to the use of water from the stream in contro- 

 versy to irrigate the amount of land he had under cultivation at the- 



