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Water and the Law For many years Utah has by statute provided for the automatic transfer of title to water rights which are appurtenant to land. This occurs even if the deed conveying the land is silent as to water rights. Utah Code Ann. § 73-1-11 is this statute. It states: A right to the use of water appurtenant to land shall pass to the grantee of such land . . . provided, that any such right to the use of water, or any part thereof, may be reserved by the grantor in any such conveyance by making such reservation in express terms in such conveyance, or it may be separately conveyed. (Emphasis added.) The water right is conveyed with the land only if water is "appurtenant to the land." It is the use of water on the land that makes it appurtenant to the land. Bauer v. Prestwich, 578 P.2d 1283, 1284 (Utah 1978). A water right is considered appurtenant to the land conveyed only to the extent that it is used to the land's benefit at the time of the conveyance. However, Little v. Greene & Weed Investment, 839 P.2d 791 (Utah 1992), narrowed the water rights that could be "appurtenant" to only those that are fully perfected. Fully perfected water rights are those which need no further steps in the approval process, such as certificated rights and adjudicated rights. This has been law since 1992. During this past legislative session, H.B. 302, supported by the State Engineer was passed. It changes Utah's appurtenancy law and amends Utah Code Ann. § 73-3-11. For conveyances made after May 4, 1998, unperfected water rights may be appurtenant if they meet other elements of the appurtenancy test. Thus, water represented by approved applications, water user claims, etc., may now also be appurtenant to land and title may pass with the land if the water is not specifically excluded from the conveyance. The concept of appurtenancy, which was not defined in the former version of Utah Code Ann. § 73-3-11 but was developed through case law, is now defined in Utah Code Ann. § 73-3-11 as the land which is the authorized place of use for the water right. The statute is silent as to the case law requirement that the land and the water must be owned by the same person or entity to be appurtenant; however, this concept appears to be inferred and water rights which have previously been conveyed to another person are not appurtenant. The safest course is to spell out in any deed the water rights that are being conveyed and reserving all other water rights to the person conveying the land. This way you will prevent an unintended conveyance of water rights. Any comments or questions can be directed to the author at (801) 532-1900. |
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