Appropriation Doctrine Specifies Separate Water Right

Under the prior appropriation doctrine, the right to use water is a property right separate and distinct from ownership of the land. Two parties claimed ownership of valuable rights to underground water for commercial use. Each claimed to have bought the same rights from the original owner. The original owner, Mr. Williams, sold the land to Herschel Caviness without mention of water rights, and when he died his estate sold the disputed water rights to KRM Inc. The trial court held that the rights had passed to Caviness by operation of law. The appellate court said the theory of water as an independent property right is subject to legislative exception only for irrigation. Since the water had never been used for irrigation, the court said the water rights established did not pass to Caviness when he purchased the property. The trial court decision was reversed.