Water Rights Subject to Condemnation Proceedings

Maxie Coffey contracted with Ulysses, Kansas, for the sale of her property's water rights. The contract treated the water as personal property. The city applied with the state Division of Water Resources to change the place of use, point of diversion, and use from irrigation to municipal. The city was told it could not drill a well without a permit; nevertheless, it built a well and started pumping water. Later Coffey and her husband sold the property by warranty deed to David C. Sullivan, Jr. without expressly excepting the water rights, believing they still owned them. The Coffeys later sued Sullivan, seeking to reform the deed so they could retain the water rights. In the meantime, Sullivan told the city it was illegally converting the water right. The Coffeys lost their suit against Sullivan. The city then condemned surface and water rights relating to the property, alleging it was necessary to provide a reliable public water supply and a place to dispose of wastewater. Sullivan sought to enjoin the condemnation of his property. The trial court denied Sullivan an injunction against the condemnation. On appeal, Sullivan argued that state law did not permit the condemnation of water rights. But the court said state says “land” includes all legal and equitable interests in real property. According to the court, the legislature has deemed water rights to be real property rights. The court held that a water right is included within the definition of “land” and thus was subject to condemnation.