Appeal from judgment of trial court holding that certain water represented by shares of water stock was not included with the sale of certain real estate from defendants to plaintiffs.
Some months prior to April 7, 1951, the defendant, Stephen Adams, listed his • home and farm at Alpine, Utah, with a . Utah County real estate office. A few days prior to April 7, 1951, plaintiffs were taken by a real estate agent to see the home and farm. Plaintiffs went again on the following day to defendants’ home and farm to further inspect the same.
On or about the 7th day of April, 1951, the plaintiffs and defendants and the real estate agent met in the bank at Pleasant Grove, Utah, to close the deal. There had been prepared a uniform real estate contract and an escrow agreement. In each of these documents, following the description of the farm land, the following appeared: “Together. with all buildings and improvements thereon and all water rights appurtenant thereto.”
At the time of the meeting at the bank, with the knowledge of the parties, the escrow agreement was amended and following the words, “and all water rights appurtenant thereto” the following was inserted: “Lehi Irr. Co. Cert. Nos. 439D, 7 sh; 440D, 7 sh; Alpine Irr. Co. Cert. *75No. 610, 36 sh.” Thereafter the parties signed the uniform real estate contract and the escrow agreement.
At the time of the negotiations concerning the sale of the property described in the escrow agreement the defendants, Stephen and Earl Adams, owned 7j/£ shares of water stock in Provo Reservoir Water Users Company, which is the subject of the controversy between the parties. Plaintiffs contend that the water represented by said shares of stock was appurtenant to the land and therefore passed under the words: “And all water rights appurtenant thereto.” Plaintiffs further contend that it was intended by the parties that the same was to pass.
The trial court upon stipulation of counsel permitted parol evidence to be offered with the reservation by defendants of the right to move to strike. At the conclusion of the taking of testimony the court struck the oral tesimony offered by plaintiffs, holding that the agreement was not ambiguous and that parol evidence was not permissible.
Our statute provides: “Water rights shall be transferred by deed in substantially the same manner as real estate, except when they are represented by shares of stock in a corporation, in which case water shall not be deemed to be appurtenant to the land * * *."1
In the case of Brimm v. Cache Valley Banking Company2 this court held that the effect of the statute “was to establish a rebuttable presumption that a water right represented by shares of stock in a corporation did not pass to the grantee as an appurtenance to the land upon which the water right was used, but that the grantee could overcome such presumption if he could show by clear and convincing evidence that said water right was in fact appurtenant and that the grantor intended to transfer the water right with the land, even though no express mention of any water right was made in the deed. * * * ” (Emphasis ours.)
There was substantial conflict in the evidence as to the extent of the use of the water on this land. The statute declares that such water shall not be deemed to be appurtenant to the land.
Plaintiff, in our opinion, failed to establish by clear and convincing evidence that the water in question was appurtenant. The evidence was in conflict as to whether respondents had used the water in question on this land continuously after they acquired it. The evidence establishes that other water was used on the land in question. We are of the opinion that proof that water represented by water stock was used on certain land by the *76oVner of the land during the entire period of his ownership of the land is not alone sufficient to rebut the presumption that such water is not to be deemed appurtenant.
If respondent had no other water than the 754 shares in question so that the reference fo appurtenant water could not refer to any other water, there would be presented a different situation.
We are of the opinion that the presumption that the water represented by the 7}4 shares of stock did not pass to the grantee was not rebutted.
The trial court found that the water represented by the 7}4 shares of stock in question was not appurtenant to the land, and We think the finding finds substantial support in the evidence.
There is a reasonable inference that the specific mention of the stock in the Lehi Irrigation Co. and Alpine Irrigation Co. must impliedly exclude the 7}4 shares of stock in question. Plaintiff, Hugh Hatch, admitted on cross-examination that it was suggested that they put into the escrow agreement the water the plaintiff was to receive.
Defendant contended that shortly after the plaintiffs went into possession of the property purchased, plaintiffs and defendants entered into an oral contract which permitted plaintiffs to use the water in question in consideration of the payment by plaintiffs of the assessments levied against said water. Plaintiffs paid the assessments for the years 1951 and 1952. Approximately one month after receipt of the assessment notice dated November 16, 1953, plaintiff, Ardean Hatch, mailed the notice to defendant, Stephen Adams, with the following letter:
“Dear Mr. Adams:
“We have been waiting before sending this water slip so we could see Mr. Day and see how many hours we got for the 7 shares, but my husband was on days for quite awhile and he’s been ill with the flue since before Christmas, so I thought I better mail it to you and let you pay it.
“Then if we find it would pay us to keep it and you still have it we can pay you. * * * ” (Emphasis added.)
There can be no doubt that there is substantial evidence to support the trial court’s findings. Judgment affirmed. Costs to respondents.
McDonough, c. j., and crockett, J., concur.. Section 73-1-10, U.C.A.1953.
. 2 Utah 2d 93, 269 P.2d 859, 864.