Respondent commenced this action to quiet title to certain lands with water rights and ditches alleged to be appurtenant thereto. From a judgment for respondent quieting his title to said premises as prayed for in the complaint this appeal is taken.
It appears that Davis and wife owned 160 acres of land in Valley county, and in 1918 mortgaged the same to J.L. Eberle to secure the payment of certain money. The mortgage contained the usual appurtenance clause, "together with all . . . . appurtenances thereto belonging or in anywise appertaining." *Page 447 At the time of the execution of the mortgage this land was not being irrigated and had no water right appurtenant thereto.
Davis conveyed to A.R. Cruzen who conveyed to appellants Lehti, subject to the Eberle mortgage. Neither Davis and wife nor Cruzen and wife, named as defendants below, are parties to this appeal, and we are concerned only with the claim of appellant Lehti. After appellants acquired title, in June, 1919, they applied through the commissioner of reclamation for a permit to appropriate water for this land, and upon the completion of the amount of work required by law to be done, in July, 1921, received a certificate of completion of works, and water was thereafter applied to the land.
Upon failure to pay an instalment of interest due on the mortgage indebtedness the mortgagee foreclosed. The complaint described the mortgaged property by its legal subdivisions and as "including all water rights, irrigation ditches and canals thereto belonging or usually had or enjoyed in connection with said premises or any part thereof." Davis and Cruzen, appellants' predecessors in interest, appeared in the foreclosure action but raised no issue presented by this appeal. Appellants were personally served with process in the foreclosure action but defaulted. The cause was tried and a decree entered ordering sale of the mortgaged property, including the water and ditch rights, as described in the complaint. Pursuant to the decree and order of sale the premises were sold and purchased by plaintiff in the foreclosure action who conveyed his interest to W.D. Molony, plaintiff and respondent in this action, who brings the same to quiet title to the land with the water and ditch rights. Cruzen and wife, who were made parties defendant in this action, defaulted, and Davis and wife, also made defendants, filed a written disclaimer. Appellants Lehti answered, denying respondent's ownership of the property, and by cross-complaint alleged that they were the owners of the land, the water and ditch rights, and that such water and ditch rights *Page 448 were not appurtenant to this land. Evidence was offered by both parties and a decree was entered quieting the ownership of the property in respondent upon the ground that the water and ditch right were appurtenant to the land and passed under the sale in the foreclosure proceedings to the purchaser, grantor of respondent herein.
Appellants contend that, because there was no water or ditch right appurtenant to the land or any water used upon it when the mortgage was executed by Davis to Eberle, the subsequent acquisition of such a right by them later and the construction of a ditch in which this water was conveyed to the premises would not make either the water right or the ditch through which the water was conveyed to the land an appurtenance that would or did pass by the sheriff's deed in the foreclosure proceedings; that a water or ditch right not in esse at the time of the execution of a conveyance and hence not mentioned therein, but which was subsequently acquired, and created, does not become appurtenant to the land and pass with the title acquired under foreclosure proceedings.
Appellants make numerous assignments of error, but all may be summarized and are comprehended within the general contention that the water right and ditch constructed to deliver this water upon the premises, after the giving of the mortgage, did not become an appurtenance to the land in question that passed by the foreclosure proceedings. The weakness of appellants' position is that they were made parties defendant in the foreclosure proceeding and personally served with process, but failed to appear and set up their claim, and the trial court in that action found that the water and ditch rights in question were appurtenances that belonged to the real estate. It would therefore appear that appellants' rights to have this question adjudicated were foreclosed in that proceeding, unless that court was without jurisdiction of the subject matter. This could only be true in the event that under no circumstances or conditions could this water or ditch right be appurtenant to the land. Ordinarily *Page 449 water and the ditches through which the same is conveyed to lands become appurtenant to the land when used upon or in connection with such land. While such rights may be conveyed separate and apart from the land, this may only be done where such was the intention of the parties to the conveyance. (Wiel on Water Rights, vol. 1, p. 589, sec. 552; Arnett v. Linhart,21 Colo. 188, 40 P. 355; Cooper v. Shannon, 36 Colo. 98, 18 Am. St. 95, 85 P. 177.)
The right to the use of the water in question was acquired and the ditch through which such water was being conveyed to the land was constructed for the purpose of delivering this water upon these premises. If appellants acquired a right to the use of water, such right, became appurtenant to the freehold, and under C. S., sec. 6361, inured to the benefit of the mortgagee and all who might then have or subsequently acquire an interest in the premises. If such was not the intention of appellants when this after-acquired right to the water and ditch was obtained it became their duty in the foreclosure proceedings to set up such claim, and upon their failure to do so the rights of the parties in that proceeding became res judicata and no longer open to a collateral attack, as is attempted in the instant case. The decree in the foreclosure proceedings, after giving a legal description of the lands and premises to be sold, recites the following: "together with all and singular the tenements, hereditaments or appurtenances thereunto belonging or in anywise appertaining, including all water rights, irrigation ditches and canals thereto belonging or usually had or enjoyed in connection with said premises or any part thereof." Therefore it is apparent that the question which appellants are seeking to raise by this action was directly involved in the foreclosure proceedings, to which they were parties, and no sufficient reason is suggested as to why the court in that action did not have jurisdiction to hear and determine the question, but on the contrary it appears from the record before us that this was the principal question involved, and having been thus determined it is not open to consideration in this action. *Page 450 Hence the judgment of the court below should be affirmed, and it is so ordered. Costs to respondent.
Budge, Givens and Taylor, JJ., concur.
Wm. E. Lee, J., concurs in the conclusion reached.