44 Colo. 488 | Colo. | 1908
delivered the opinion of the court:
The salient facts are that Laura E. Cook, in the year 1893 owned, in one contiguous tract, a quarter section of land and also other contiguous or adjacent lands, water rights, reservoirs and ditches for applying water thereto. She divided the quarter section into eight twenty-acre tracts, four of which lay on the north, and four on the south, side thereof. She sold and conveyed to each of her four daughters, then living, forty acres of this quarter section, each one taking twenty acres in the north, and twenty acres in the south, row of the tract so divided. The conveyance was made by one deed, which, after particularly designating the four several interests in the land .conveyed, thus described the water rights granted with the lands: “* * * together with the following water rights, to wit: To the said Olive I. McGinnis and Lillian B. Brinkerhuff each the right to purchase yearly from the irrigating ditch known as the Eureka ditch for use upon their respective parcels of land lying under and below said Eureka ditch twelve and one-half inches of water; and to the said Laura E. Randall and Emily F. Briggs each the right to use each and every year thereafter during the irrigating season thereof for the south twenty acres
As we understand the record, plaintiff does not claim any other or different water or ditch rights than those expressly and by implication conveyed in the deed of Mrs. Cook to her two daughters, except such rights as, under another source of title, he claims to have obtained as the result of an independent appropriation, which latter claim will he hereinafter separately considered. It appears from the complaint, and also by the evidence, that the ditches
We do not say that these cases do not announce a correct rule under their facts, but we do say that the legal principle asserted has no application whatever to the facts of this case. Conceding that the doctrine is sound in those cases where the conveyance is silent as to easements or water rights, such is not the case we are considering. In this state the right to the use of water for irrigation is deemed real estate, and is a distinct subject of grant, and may be transferred either with or without the land for which it was originally appropriated, and whether a “water right” passes in a deed of land as an appurtenance, in the absence of express terms in the deed, depends upon the circumstances of the particular case and the intention of the parties.—Strickler v. City of Colorado Springs, 16 Colo. 61; Arnett v. Linhart et al., 21 Colo. 188. This doctrine has been often approved in this court in subsequent cases. Plaintiff’s deed is not silent ás to the-'easements in ditches or the water rights which his grantor intended should pass. On the contrary it is very specific and clearly defines the particular interest, or easements, in ditches- and the water rights which are the subject of the grant. Quite true, .no water rights were specifically described or conveyed with which the northern portion of the northern twenty-acre tracts could be irrigated. Nevertheless the grantor had the right, if the grantee was willing to accept the deed, to convey only sufficient water rights to irrigate the southern portion of the northern roy of twenty-acre tracts. The deed having thus clearly described the water rights which it was the intention of the grantor to convey, there is no room for the application of the doctrine of implied grants for which plaintiff contends. The matter is one of convention
“It is, however, a matter of contract depending entirely upon the construction of the conveyance, and the above rules are applicable, according to the character, state and use of the premises at the time of the grant, only where the intention of the parties in this respect is not expressed in terms.” In Scott v. Beutel, 23 Gratt. 1, and Hardy v. McCullough et al., 23 Gratt. 251, the supreme court of Virginia explicitly and clearly states that the doctrine does not obtain .where the intention of the parties is expressed in terms, and in the latter case said: “When not thus expressed, the construction will be controlled by the use and condition of the property at the time of sale,, and certain implications and presumptions of law arising thereon. But these implications or presumptions will only be applied in the absence of an express contract on the subject between the parties. Where there is such contract, the case must be governed by it ‘upon the ground of convention, between those who have a disposing power.’ ”
To apply the law thus laid down to the facts of this case, we have here a deed in which the parties, by express contract, have said what particular water rights shall pass to, and in connection with the grant of, the several parcels of land. 'The grantee, therefore, takes only such water rights as are, by the express terms of the contract of conveyance, described.
The additional point made by plaintiff, that even if he acquired by grant no water rights other than those described in his deed, he has acquired them as a result of an independent appropriation, finds no support in the evidence. Such a claim, under the facts, is so devoid of merit that we decline to enter .upon a discussion of it.
In thus disposing of the ease we must not be understood as upholding the right of plaintiff, under
The judgment below, which was in favor of defendants, is affirmed. Affirmed.
Chief Justice Steele and Mr. Justice Gabbert concur.