The only question presented by this appeal is this: Did the trial court err in refusing to allow appellants to show by extrinsic evidence that a deed executed by appellant Olive in 1905, conveying certain premises to respondent, was not intended by either of the parties to the conveyance to include a water right with the land? At this time the suit ofRexburg Irr. Co. et al. v. Teton Irr. Canal Co. et al. was pending in the district court. The purpose of that action, among other things, was to have a judicial determination of the right of appellant Olive to the use of certain water which he was claiming in connection with this and other lands he owned. In 1910 the water suit was finally concluded and appellant Olive was awarded 600 inches of water which he had been using upon this land prior to the conveyance to respondent.
In the instant case appellants sought to show that by express agreement of the parties to the conveyance this water right in litigation in the water suit, whatever it might be determined to be, was reserved from the grant and was not to pass with the land, and that respondent had never in fact used the water upon the land. Respondent contends that because the deed of conveyance contained the usual appurtenance clause appellants are precluded from showing this reservation, and the trial court so held, and the majority opinion sustains this holding.
The majority opinion states that where the language of a deed is plain and unambiguous and no fraud or mistake is claimed with regard to its execution, the intent of the parties must be ascertained from the instrument itself. It then holds that if a deed contains an appurtenance clause such conveyance carries with it any water right that might have been appurtenant to such land, and that the parties *Page 15 to the instrument are thereafter precluded from showing an express agreement to reserve such water right, for the reason that to permit them to do so would be varying the terms of a written instrument by parol.
The assumption that because a deed to land contains an appurtenance clause neither party to the instrument may thereafter show the actual transaction and intent of the parties, as to what was being conveyed by the grant in the way of appurtenances, begs the whole question at issue. It will not be denied that where the right to the use of water is appurtenant to land being conveyed, in the absence of an agreement to the contrary, such right will pass with the grant, with or without the appurtenance clause in the deed. But I dissent from the view of the majority that an appurtenance clause in a deed has such a fixed, certain and definite meaning when used in a deed that it precludes either party to such instrument from showing by extrinsic evidence that a right to the use of certain water upon such land did or did not, as the case may be, pass with the grant.
"It is universally recognized that a deed is not an instrument which is presumed to contain the whole contract of the parties and which cannot be supplemented by proof that other things were orally agreed on at the time." (10 R. C. L., p. 1037, sec. 229.) This text in R. C. L. is from note inJohnson v. McClure (Minn.), 2 Ann. Cas. 144, p. 148, where authorities from many courts are given.
Parol evidence is admissible to show that a deed absolute on its face is in fact a mortgage. (Thompson v. Burns, 15 Idaho 572,99 P. 111; Fountain v. Lewiston Nat. Bank, 11 Idaho 451,83 P. 505; Bergen v. Johnson, 21 Idaho 619, 123 P. 484;Largilliere v. Zavala, 39 Idaho 759, 230 P. 774.)
There are many instances where extrinsic evidence is admitted, not for the purpose of varying or contradicting the terms of a deed, but to explain the intention of the parties to the instrument. For example, "The only effect of this consideration clause in a deed is to estop the grantor from alleging that the deed was executed without consideration. *Page 16 For every other purpose it is open to explanation, and may be varied by parol proof." (Devlin on Real Property and Deeds, 3d ed., vol. 2, p. 1490, sec. 823, citing Barnum v. Childs, 1 Sand. Ch. (3 N.Y. Super. Ct.) 58; Jewell v. Walker,109 Ga. 241, 34 S.E. 337.)
The same author, at p. 1497, sec. 830, further says: "A party is estopped by his deed. He is not to be permitted to contradict it; so far as the deed is intended to pass a right, or to be the exclusive evidence of a contract, it concludes the parties to it. But the principle goes no further. A deed is not conclusive evidence of everything which it may contain. For instance, it is not the only evidence of the date of its execution; nor is its omission of a consideration conclusive evidence that none passed; nor is its acknowledgment of a particular consideration an objection to other proof of other and consistent considerations."
"Deeds are to be interpreted according to their subject matter, and such construction given to them as will carry out the intention of the parties, provided it is legally possible to do so consistently with the language of the instruments." (8 R. C. L., p. 1039, sec. 95.)
"Appurtenant. The term has no inflexible meaning, and as a noun is defined as that which belongs to another thing, but which has not belonged to it immemorially." (4 C. J., p. 1470.)
"Appurtenance. An adjunct; an appendage; an addition; that which belongs to something else; that which belongs to another thing, but which has not belonged to it immemorially." (Id., p. 1466.)
"Appurtenances. Things belonging to another thing as principal, and which pass as incident to the principal thing." (Bouvier's Law Dictionary.)
I am unable to find any support for the majority rule, either in the cases cited in support thereof or elsewhere.
The case of Donnell v. Humphreys, 1 Mont. 518, relied upon, is a learned discussion of the subject, but announces the rule to be directly contrary to that of the majority opinion, in the following language: *Page 17
"Extrinsic evidence is admissible to show the nature and extent of an appurtenance, which passes with the principal thing granted.
"A water ditch cannot be appurtenant to another water ditch and pass as an incident thereto under a grant of the same.
"Parol contemporaneous evidence is not admissible to contradict or vary the terms of a valid written instrument, but such evidence is competent to enable the court to ascertain the intention of the parties to the deed, and make certain the language respecting its subject matter, and give effect to the deed.
"The law distinguishes between that which passes as an appurtenance, and that which passes as a part of the subject matter."
In the opinion, at p. 526, it is said:
"So extrinsic parol evidence is always admissible to give effect to a written instrument, by applying it to its proper subject matter, by proving the circumstances under which it was made, thereby enabling the court to put themselves in the place of the parties with all the information possessed by them, the better to understand the terms employed in the contract, and to arrive at the intention of the parties. (Heldebrand v. Fogle,20 Ohio, 147; 1 Greenl. on Ev., sec. 277.)"
This court and all courts recognize as valid a transfer of the right to the use of water separate and apart from the land. That is, while water is generally held to be real estate in the arid states, and also to be an appurtenance to lands upon which it has been used, ordinarily the right to a severance is not questioned. (Hall v. Blackman, 8 Idaho 272, 68 P. 19; Hard v.Boise City Irr. Co., 9 Idaho 589, 76 P. 331, 65 L.R.A. 407.) Therefore no question can arise about the right of appellant Olive to convey the land and reserve the right to the use of water which was then in litigation and not decreed until about five years thereafter.
It is not in controversy that all the water used by respondent in connection with this land, after the conveyance *Page 18 to him in 1905, was water from the river or some of its tributaries that reached it by way of subirrigation. Appellant Olive had applied the water he used on this land up to the time of the conveyance to respondent in 1905 by means of surface ditches, which were not thereafter used by respondent to water this land, but all crops which he has since raised have been by subirrigation from the natural channels of the stream. This water was not subject to control and is not water that can be identified or charged to any particular appropriation, for it is a contribution made by way of seepage or subirrigation from the stream, and is not the water that was decreed to appellant Olive in 1910.
In Paddock v. Clark, 22 Idaho 498, 126 P. 1653, also relied upon to support the majority opinion, the grantor had three different classes of water rights appurtenant to the land. The deed described only two of the classes but contained the usual appurtenance clause. The court limited the water which passed with the land to that particularly described in the deed, and held that the general appurtenance clause was not under these circumstances sufficient to convey the other water right which, admittedly, was an appurtenance to the land but which had not been specifically mentioned in the deed.
In Russell v. Irish., 20 Idaho 194, 118 P. 501, it was said: "In this case the twenty acres of land was deeded together with the appurtenances. This conveyance would carry with it the water right appurtenant to the land at the time of the conveyance, unless it was specifically reserved in the deed orit could be clearly shown that it was known to both partiesthat the water right was not intended to be conveyed."
Wiel on Water Rights, 3d ed., sec. 552, at p. 589, says: "The word 'appurtenance' does not mean 'inseparable' in this connection, as we have set forth at length in another place in discussing change of place of use. It depends on what the facts show that the parties to the sale meant to do. It is a question of intention, to be drawn from the deed or, if the deed is silent, to be drawn from the surrounding circumstances, *Page 19 the acts of the parties and parol evidence generally. . . . .
"Summing up, it may be said that a water-right of appropriation will not pass on a sale of land if not so intended, and it is hence not strictly accurate to say that a deed of land per se passes a water-right used for its irrigation; but in the absence of any evidence of such intent to the contrary it is well settled that an appurtenant water-right of appropriation passes with the land on a sale though not mentioned in the deed, nor the word 'appurtenance' used."
Under note 5 the authorities from many jurisdictions, supporting this rule, are given.
In Arnett v. Linhart, 21 Colo. 188, 40 P. 355, it is said: "Although a water right may be appurtenant to the land, it is the subject of property, and may be transferred either with or without the land. (Strickler v. City of Colorado Springs,16 Colo. 61, 26 P. 313.) Being, therefore, a distinct subject of grant, and transferable either with or without the land, whether a deed to land conveys the water right depends upon the intention of the grantor, which is to be gathered from the express terms of the deed; or, when it is silent as to the water right, from the presumption that arises from the circumstances, and whether such right is or is not incident to and necessary to the beneficial enjoyment of the land."
In Cooper v. Shannon, 36 Colo. 98, 18 Am. St. Rep. 95, 85 Pac. 175, the court quotes from the Arnett Linhart case with approval.
In Davis v. Randall, 44 Colo. 488, 99 P. 322, in paragraph 3 of the syllabus, it is held that: " Whether a right passes with the land as an appurtenance depends upon the circumstances of the case, and the intention of the parties." (See, also,Farm Investment Co. v. Gallup, 13 Wyo. 20, 76 P. 917.)
It appears from the testimony offered by respondent that he has never used any particular water, but that his crops have been produced by subirrigation from the natural channels of Snake River or its tributaries, that some years after *Page 20 this conveyance to him he applied to the state engineer for a permit to make a new or independent appropriation for this land.
Upon the admitted facts and circumstances of this case it should be reversed and remanded, with instructions to grant a new trial and permit the introduction of extrinsic evidence to show the real transaction between the parties.
I am authorized to say that Mr. Justice Budge concurs in the conclusion expressed in the foregoing dissenting opinion.