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<br />001100 <br /> <br />'. <br /> <br />acorues against him as for breaoh of oontraot. In brief. the stipulation <br />provides, substantially, for a oontinuous series of transaotions in the wa:y <br />of annual oontraots, v'hioh it is optional with the grantor to enter intO. <br />South Boulder & R. C. D. Co. v. Marfell. 15 Colo. 302. 25 Pao. 504. In <br />order to proteot this right. as against others applying to the ditoh <br />oompany for, and seouring water, and retain the status he oooupied at the <br />time the deed was exeouted and delivered. the grantor or his suooessors must <br />have exeroised the right reserved in the deed eaoh year. In this respeot he <br />stands exaotly on the same plane as any other oontraot oonsumer, and if he <br />negleots or f'ails to take water annually from the date his right to do so <br />Morued, then his status with respeot to the other oonsumers would date <br />baok from the time he began to exeroise uninterruptedly the right reserved <br />in his deed. <br /> <br />" <br /> <br />VJhile on the subjeot of oonsidering the right of way deeds exeouted <br />by oertain appellees or their predeoessors. oontaining the reservation <br />above noted. we will oonsider the olaim to the use of water made by the <br />representative of' E. J. Sanderlin, deoeased. This 01aimwas denied by the <br />trial oeurt. His represen.~ative oontends that this was error. It is <br />doubtful if the question is properly here f'or oonsideration, but it is <br />not raised by oounsel for appellant, and we will oonsider the matter on <br />its merits. Sanderlin's deed was exeouted and delivered in 1874, and <br />oontained the stipulation to whioh we have referredo About three years <br />later he sold his land through whioh the right of' way was granted. resel"V'" <br />ing his water right evidenoed by the stipulation in his right of way deed. <br />Aooording to his testimony he applied to the oompany for water after he <br />sold his land in 1878 or 1879, and thereafter. from time to time. His <br />demands were relll'used. It appears that he did not have any land during <br />all this period upon whioh the water he claimed to be entitled to could <br />be applied, or that he could make any beneficial use of such water. In <br />suoh oircumstances his demands were properly refused. An appropriator <br />of water, or one having the right to utilize it f'or a benefioial purpose, <br />is not entitled to h8.ve water turned out to him unless he oan benef'ioially <br />use it. Not having any land upon which the water could be applied. nor <br />any use for the water, it would have been waste to oomply with his demands. <br />and he gained nothing by making them. He think: the trial oourt was right <br />in denying this olaim. <br /> <br />Error is also assigned upon the ruling of the oourt. that deeds oon- <br />veying land upon which water had been applied by oontract oonsumers also oon- <br />veyed whatever water right was thus aoquired in oonneotion with suoh land. <br />regardless of whether there was any proof' of a conveyanoe of water rights fro:",. <br />the original user. This question only beooljes material in those instanoes <br />where the oontraotual relation upon whioh the water right olaimed is based <br />oontinued without interruption between the grantor and ditoh oompany. and <br />thereafter between his grantee or suocessors and the oompany. and it is. <br />therefore. only neoessary to state the rule which governs in determining <br />whether a deed to land conveys a water right. Whether a deed to land oonvey" <br />a water riglr\:; in oonneotion therewith depends upon the intention of the <br />grantor to be gathered f'rom the terms of the deed, or where it is silent <br />on the subjeot. from the oirournstanoes surrounding the transaction. King v. <br />AAkroyd, 28 Colo. 488, 66 Pac. 906; Bessemer I.D. Co. v. Soolley. 32 COlo. <br />437. 76 Pao. 1053. 105 Am. St. Rep. 91; Travelers Ins. Co. v. Childs, 25 <br /> <br />-8- <br />