November 30, 1931, three writs of attachment were issued in behalf of intervenor, each against, "all the property of said defendant Filer Livestock Company, *Page 660 Inc., a corporation, or so much thereof as may be sufficient to satisfy said plaintiff's demands."
Thereafter the sheriff of Twin Falls county levied and made return on said writs of attachment as follows:
"To the County Recorder of Twin Falls County, Idaho:
"PLEASE TAKE NOTICE that by virtue of the annexed writ of attachment, I hereby attach all right, title and interest of every kind and character of FILER LIVESTOCK CO., Inc., a corporation:",
describing only certain real property, making no mention of any water rights whatever.
"I, E.P. Prater, sheriff of the County of Twin Falls, State of Idaho, hereby certify that I received the within and hereunto annexed Writ of Attachment on the 30th day of November, 1931, and executed the same within said County and State, on the 30th day of November, 1931, by delivering to and leaving with Harry C. Parsons, County Recorder of Twin Falls County, State of Idaho, a copy of said Writ of Attachment, together with a notice in writing that all the right, title, interest and claim of FILER LIVESTOCK COMPANY, Inc., a corporation, the within named defendant, of, in and to the following described real estate, was attached and levied upon by virtue of said Writ of Attachment, to-wit:"
Likewise describing only real estate, mentioning no water rights. A Carey Act water right was appurtenant to said real estate being used thereon at the time by the debtor.
Thereafter appellant attached in the present proceeding such water rights, the intervenor coming in on the claim that its attachment of the real property above indicated covered the water rights and was therefore prior, which appellant resisted.
Appellant attacks respondent's original attachment bond on the ground that it referred only to section 6781 of C. S. for 1919 (now sec. 6-503, I. C. A.), and was thereby insufficient because no mention was made of the liability added by chapter 206, 1921 Session Laws, page 416. After *Page 661 the amendment section 6781 still remained such section in C. S., with, however, the amendment read into, and part thereof, the same as though thus originally stated. (59 C. J. 1096, sec. 647, note 26.) The amendment to the statute was in force at the time the bond was given, which distinguishes it fromAnthony v. Van, 96 Cal. 523, 274 P. 563, 564.
Only one statute with regard to liability under an attachment bond was at all times in force, namely, section 6781, though amended. (Gordon v. Kerr, ante, p. 106, 21 P.2d 930.)
The real question is whether or not an attachment of real property which has appurtenant thereto a Carey Act water right, without mention of such water right, creates a lien upon such water right.
Wells v. Price, 6 Idaho 490, 56 P. 266, held, that to be effective an attachment upon shares of stock in an irrigation company levied October, 1891, must have been levied in accordance with sections 4307 and 4477, R. S., now sections6-506 and 8-201, I. C. A., saying:
"Shares of stock in an irrigation corporation are not appurtenant to the land owned by the owner of such shares, even though such land be irrigated by water from a canal owned by such corporation."
In 1895, after the attachment in the above case, the legislature passed the statute now section 41-1725, I. C. A., making Carey Act water rights appurtenant to land. Thereafter the court in Ireton v. Idaho Irr. Co., Ltd., 30 Idaho 310,164 P. 687, held a Carey Act water right to be real property and that the shares are merely incidental to the ownership of the water rights, following the water rights which in turn are real property appurtenant to the land.
Thus, while the shares of stock may be personalty, the water right, which controls, is real property. (Watson v. Molden,10 Idaho 570, 79 P. 503; Paddock v. Clark, 22 Idaho 498,126 P. 1053.) Which is likewise the statute, sec. 54-101, I. C. A. *Page 662
Appellant, however, relies on the case of Cooper v. Shannon,36 Colo. 98, 85 P. 175, 18 Am. St. 95, to support the contention that the attachment without mention of the water right did not operate thereon.
Carey Act water rights can be separated from the land only under the procedure provided in sections 41-2101 to 41-2109, I. C. A.
This court has held, construing the Shannon case, that a water right passes with the realty to which it is appurtenant unless there is intention to the contrary (Molony v. Davis,40 Idaho 443, 449, 233 P. 1000), and easements pass with the realty (section 54-603, I. C. A.), concerning which this court has held the following:
"And the general rule is that where an easement is annexed to land, either by grant or prescription, it passes as an appurtenance with the conveyance 'of the dominant estate, although not specifically mentioned' in the deed, or even without the use of the term 'appurtenances,' 'unless expressly reserved from the operation of the grant.' (19 C. J., pp. 935, 936.) " (Johnson v. Gustafson, 49 Idaho 376, 381, 288 P. 427.)
Conceding that an easement is different from a water right, water rights and appliances connected therewith have been considered, so far as the point here is concerned, sufficiently similar to easements, to pass with the land though not mentioned as such or as appurtenances. (Cave v. Crafts, 53 Cal. 135;Cross v. Kitts, 69 Cal. 217, 221, 10 P. 409, 58 Am. Rep. 558; Eshelman v. Snyder et al., 82 Ind. 498, 501; Frank v.Hicks, etc., 4 Wyo. 502, 35 P. 1025; Tucker v. Jones, 8 Mont. 225,231, 19 P. 571; Hindman v. Rizor, 21 Or. 112, 118,27 P. 13; Simmons v. Winters, 21 Or. 35, 46, 27 P. 7, 28 Am. St. 727; Farmer v. Ukiah Water Co., 56 Cal. 11, 15; Hard v.Boise City Irr. L. Co., 9 Idaho 589, 76 P. 331, 65 L.R.A. 413.)
The Shannon case relied upon by appellants rests for its conclusion that the sheriff's deed there did not cover the *Page 663 water right, on chapter 107, 1893 Session Laws of Colorado, page 298,1 which statute we do not have.
Montana, construing Ireton v. Idaho Irr. Co., Ltd., supra, has held in effect contrary to the rule in Colorado and in effect that contended for by respondents herein. (Yellow-stoneValley Co. v. Associated Mortg. Investors, 88 Mont. 73,290 P. 255, 70 A.L.R. 1002.)
In Andrews v. North Side Canal Co., 52 Idaho 117, 126,12 P.2d 263, this court was considering whether an assessment of real property was valid without mentioning the water right and concluded thus:
"We are clearly of the opinion that the water right in the instant case is real estate, and under a fair construction of the statutes to which reference has been made, is appurtenant to and an integral part of the land to which said water right has been dedicated; that it passed with the land when conveyed; and that its assessment and taxation were included within the assessment and taxation of the land to which it was appurtenant."
Paraphrasing the above, "and that its (water right)attachment was included within the attachment of the land to which it was appurtenant."
The correct rule deducible from an analysis of the statutes and decisions treating of the nature of water rights is that unless it affirmatively appears to the contrary, directly or by implication, a water right is attached equally with the land to which it is appurtenant, though the land alone is specified in the writ or return of attachment.
Judgment affirmed; costs to respondent.
Budge, C.J., and Holden and Wernette, JJ., concur.
Petition for rehearing denied.
1 "In the conveyance of water rights hereafter made in this State in all cases except where the ownership of stock in ditch companies or other companies constitutes the ownership of a water right, the same formalities shall be observed and complied with as in the conveyance of real estate." *Page 664