[246]*246OPINION
PER CURIAM.
Plaintiffs, Hunziker and Greenwalt, each alleging that he was the owner of a certain tract of land in Albany County and that an appropriation of irrigation [247]*247water had been made for said land, joined in seeking an injunction against the defendants, water officers of the State of Wyoming, from “continuing to deny the plaintiffs * * * a right to divert and take” the irrigation water for said lands. Various other1 landowners and water users in the area intervened and prayed for the dismissal of plaintiffs’ petition, alleging that Bruce G. Eaton, a former owner of the lands in question, had at the dates of the sales reserved the water1 rights and later transferred them to the Divide Canal and Reservoir Company, which company had by agreement with Sand Creek appropriators abandoned the said water rights. A temporary injunction was granted, but upon final hearing the trial court denied the permanent injunction and resolved the matter against plaintiffs who have appealed to this court.
The controversy arose from the fact that in 1907 and 1908 Eaton, then owner of lands, a part of which is now claimed by each plaintiff, issued warranty deeds to plaintiffs’ predecessors in interest specifically reserving water rights unto himself, his heirs, and assigns. Plaintiffs now contend that all of the water rights appurtenant to the lands at the time of the Eaton conveyances were passed by the deeds. The petition related only to the ownership of the lands, appropriation of the water, some use of the water, and the improper actions of defendants in forbidding plaintiffs to use. it. The arguments however are more comprehensive, urging that Eaton’s acts in attempting to reserve the water rights were void and that the defendants being administrative officers of the State are bound by the records of the State Board of Control which show the water to be appurtenant to the lands in question. Defendants and the interveners counter with the view that the water rights at the dates of the Eaton deeds could have been transferred separate from the lands, further insisting that plaintiffs have offered [248]*248no evidence of water rights and have failed to show any injury to themselves by the Eaton reservations.
Although both the pleadings and arguments concern themselves with a discussion of the legality and propriety of the transfer by Eaton of the “reserved water rights” to the Divide Canal and Reservoir Company, the subsequent abandonment of the appropriations by that company, and matters of similar import, we are at a loss to understand why anything that occurred after the “Eaton reservations” is germane to the present controversy.
As we see it, the situation presents the following alternative possibilities, either of which eliminates from present consideration any subsequent inconsistent acts either by the parties or by the Wyoming water officials :
(1) If the purported reservations of the water rights by, Eaton were legally effective, then plaintiffs could have received no water rights and consequently have no standing here. On this point it may be observed that the record of the Board of Control is prima-facie evidence of the right to take water but is not conclusive. See Hamp v. State, 19 Wyo. 377, 118 P. 653, 663.
(2) If on the other hand the water rights were appurtenant to the land at the time of the Eaton deeds and by operation of law the deeds passed the water rights with the lands (notwithstanding anything in the deeds to the contrary) then the water rights have passed to the plaintiffs by mesne conveyances and any subsequent attempts of Eaton to assign or of his successors of interest to abandon are without force or effect. • • [249]*249The outcome of the present litigation depends upon which of the above alternatives was disclosed by the pleadings and evidence in the court below.
We advert then to plaintiffs’ petition. Nowhere therein is it stated in clear and concise language that plaintiffs are the owners of the water rights in question, and it must necessarily follow that plaintiffs rely upon the law in effect during the years of 1907 and 1908 to show their ownership of water rights. In general, at the dates the Eaton reservations were made it was the unquestioned rule that in the absence of specific provisions by the state to the contrary water rights might be reserved by the grantor. In 2 Kinney on Irrigation and Water Eights, 2d ed., p. 1780, it is stated:
“If specified in the deed conveying a certain tract of land, the water right, although it may in fact be an appurtenance to the land, may be reserved by the grantor, who may then transfer the water claimed under the right to some other land, provided, of course, that the rights of others are not injured by the change.”
To a similar effect see the statement in 1 Wiel, Water Eights in the Western States, 3d ed., pp. 582, 583:
“Unless otherwise provided by statute, the right may be sold separate from land, since it is independent of title to or possession of land * * *.
“* * * * though a water-right is usually appurtenant to the land where used, yet it may be reserved on a sale of the land. A ‘reservation’ is something extracted from the whole res covered by the general terms of the grant, lessening the thing granted from what it would otherwise have been. * * *”
Wyoming at that time had no statute preventing the [250]*250reservation of a water right or the sale of it separate from the land. Accordingly, we have no alternative but to look to the views of the court at that time for the guiding principle on the subject. In reviewing cases of the era following the adoption of the constitution and prior to the Eaton deeds, we find the following statements which are of some significance.
In Frank v. Hicks, 1894, 4 Wyo. 502, 35 P. 475, 35 P. 1025, Judge Conaway said at page 480 in discussing another case:
« * * * jf this means simply that the owner of land, and of a water right from which the land is irrigated, may sell the water right without selling the land, it is in harmony with the decisions of other courts. * * * ” and at page 484:
“ * * * It is true that by all the authorities the water right is separable from the land to which it is appurtenant, and may be sold separate from the land, and the place of diversion and place of use may be changed. But this is only when these acts are not injurious to the rights of others. * * * ”
In Johnston v. Little Horse Creek Irrigating Co., 1904, 13 Wyo. 208, 79 P. 22, 24, 26, 27, 70 L.R.A. 341, 110 Am.St.Rep. 986, Judge Potter said:
“ * * * The only limitation upon the right of sale of a water right separate from the land to which it was first applied, and to which it has become appurtenant, laid down by any of the authorities, is that it shall not injuriously affect the rights of other appropriators. * * *
* * * * *
“We cannot agree that it requires a strained and distorted interpretation of our statutes to uphold the doctrine permitting the sale of a water right separate [251]*251from the land. On the contrary, it would require a strained construction of the statutes to deny such a right. * * *
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[246]*246OPINION
PER CURIAM.
Plaintiffs, Hunziker and Greenwalt, each alleging that he was the owner of a certain tract of land in Albany County and that an appropriation of irrigation [247]*247water had been made for said land, joined in seeking an injunction against the defendants, water officers of the State of Wyoming, from “continuing to deny the plaintiffs * * * a right to divert and take” the irrigation water for said lands. Various other1 landowners and water users in the area intervened and prayed for the dismissal of plaintiffs’ petition, alleging that Bruce G. Eaton, a former owner of the lands in question, had at the dates of the sales reserved the water1 rights and later transferred them to the Divide Canal and Reservoir Company, which company had by agreement with Sand Creek appropriators abandoned the said water rights. A temporary injunction was granted, but upon final hearing the trial court denied the permanent injunction and resolved the matter against plaintiffs who have appealed to this court.
The controversy arose from the fact that in 1907 and 1908 Eaton, then owner of lands, a part of which is now claimed by each plaintiff, issued warranty deeds to plaintiffs’ predecessors in interest specifically reserving water rights unto himself, his heirs, and assigns. Plaintiffs now contend that all of the water rights appurtenant to the lands at the time of the Eaton conveyances were passed by the deeds. The petition related only to the ownership of the lands, appropriation of the water, some use of the water, and the improper actions of defendants in forbidding plaintiffs to use. it. The arguments however are more comprehensive, urging that Eaton’s acts in attempting to reserve the water rights were void and that the defendants being administrative officers of the State are bound by the records of the State Board of Control which show the water to be appurtenant to the lands in question. Defendants and the interveners counter with the view that the water rights at the dates of the Eaton deeds could have been transferred separate from the lands, further insisting that plaintiffs have offered [248]*248no evidence of water rights and have failed to show any injury to themselves by the Eaton reservations.
Although both the pleadings and arguments concern themselves with a discussion of the legality and propriety of the transfer by Eaton of the “reserved water rights” to the Divide Canal and Reservoir Company, the subsequent abandonment of the appropriations by that company, and matters of similar import, we are at a loss to understand why anything that occurred after the “Eaton reservations” is germane to the present controversy.
As we see it, the situation presents the following alternative possibilities, either of which eliminates from present consideration any subsequent inconsistent acts either by the parties or by the Wyoming water officials :
(1) If the purported reservations of the water rights by, Eaton were legally effective, then plaintiffs could have received no water rights and consequently have no standing here. On this point it may be observed that the record of the Board of Control is prima-facie evidence of the right to take water but is not conclusive. See Hamp v. State, 19 Wyo. 377, 118 P. 653, 663.
(2) If on the other hand the water rights were appurtenant to the land at the time of the Eaton deeds and by operation of law the deeds passed the water rights with the lands (notwithstanding anything in the deeds to the contrary) then the water rights have passed to the plaintiffs by mesne conveyances and any subsequent attempts of Eaton to assign or of his successors of interest to abandon are without force or effect. • • [249]*249The outcome of the present litigation depends upon which of the above alternatives was disclosed by the pleadings and evidence in the court below.
We advert then to plaintiffs’ petition. Nowhere therein is it stated in clear and concise language that plaintiffs are the owners of the water rights in question, and it must necessarily follow that plaintiffs rely upon the law in effect during the years of 1907 and 1908 to show their ownership of water rights. In general, at the dates the Eaton reservations were made it was the unquestioned rule that in the absence of specific provisions by the state to the contrary water rights might be reserved by the grantor. In 2 Kinney on Irrigation and Water Eights, 2d ed., p. 1780, it is stated:
“If specified in the deed conveying a certain tract of land, the water right, although it may in fact be an appurtenance to the land, may be reserved by the grantor, who may then transfer the water claimed under the right to some other land, provided, of course, that the rights of others are not injured by the change.”
To a similar effect see the statement in 1 Wiel, Water Eights in the Western States, 3d ed., pp. 582, 583:
“Unless otherwise provided by statute, the right may be sold separate from land, since it is independent of title to or possession of land * * *.
“* * * * though a water-right is usually appurtenant to the land where used, yet it may be reserved on a sale of the land. A ‘reservation’ is something extracted from the whole res covered by the general terms of the grant, lessening the thing granted from what it would otherwise have been. * * *”
Wyoming at that time had no statute preventing the [250]*250reservation of a water right or the sale of it separate from the land. Accordingly, we have no alternative but to look to the views of the court at that time for the guiding principle on the subject. In reviewing cases of the era following the adoption of the constitution and prior to the Eaton deeds, we find the following statements which are of some significance.
In Frank v. Hicks, 1894, 4 Wyo. 502, 35 P. 475, 35 P. 1025, Judge Conaway said at page 480 in discussing another case:
« * * * jf this means simply that the owner of land, and of a water right from which the land is irrigated, may sell the water right without selling the land, it is in harmony with the decisions of other courts. * * * ” and at page 484:
“ * * * It is true that by all the authorities the water right is separable from the land to which it is appurtenant, and may be sold separate from the land, and the place of diversion and place of use may be changed. But this is only when these acts are not injurious to the rights of others. * * * ”
In Johnston v. Little Horse Creek Irrigating Co., 1904, 13 Wyo. 208, 79 P. 22, 24, 26, 27, 70 L.R.A. 341, 110 Am.St.Rep. 986, Judge Potter said:
“ * * * The only limitation upon the right of sale of a water right separate from the land to which it was first applied, and to which it has become appurtenant, laid down by any of the authorities, is that it shall not injuriously affect the rights of other appropriators. * * *
* * * * *
“We cannot agree that it requires a strained and distorted interpretation of our statutes to uphold the doctrine permitting the sale of a water right separate [251]*251from the land. On the contrary, it would require a strained construction of the statutes to deny such a right. * * *
*****
“ * * * We can perceive nothing in the fundamental principles underlying the doctrine of prior appropriation in the use of water that interferes with the right of sale of the water right, but, on the contrary, those principles seem to be in harmony with such right. * * *”
The matter was not again discussed by the court1 prior to the Eaton deeds in 1907 and 1908, and whether or not there be disagreement about the propriety of the rule, it was then well established in this State that appurtenant water rights might be sold separate and apart from the lands. The legislature by Ch. 68, S. L. of Wyoming, 1909, now incorporated in § 71-401, W.C. S.1945, changed this rule and “adopted the policy that a water right by direct flow from a stream shall be attached to land.” Scherck v. Nichols, 55 Wyo. 4, 95 P.2d 74, 80.
Some more or less casual reference has been made in both the pleadings and the evidence to the use of irrigation water by the plaintiffs. However, no claim was based on this fact; and, even though it had been, use of the water would not, standing alone, give them any rights to title by prescription. See Campbell v. Wyoming Development Company, 55 Wyo. 347, 100 P.2d 124, 102 P.2d 745.
[252]*252Certain matters urged in the briefs though not essential to a determination of the case may warrant some mention:
(1) Plaintiffs state that water is the property of the State of Wyoming, is under the State’s control, and is in fact held by the State in trust for its people. We concur, but we think that such principle does not alter the fact that under the views extant at the time of the issuance of the Eaton deeds certain rights in and to water might be reserved by the seller of land. 1Fhe legislature (Ch. 97, S. L. of Wyoming, 1905) reiterated the court’s rule that a transfer of a water right from land on which it had been used should not be valid if injurious to other appropriators and provided the manner by which a transfer of water rights might
(2) Plaintiffs point out that Eaton did not follow the provisions of Ch. 97, S. L. of Wyoming, 1905, which provided the method of transfer, and say, “The reservations * * * did not accomplish a transfer * * Plaintiffs thus admit that the water rights did not leave Eaton at the time of the deeds in question, and with this we agree. Whether or not any subsequent attempt by Eaton to convey could be effective is a matter not before the court.
(3) We note with some interest the reference to the cases of Quinn v. John Whitaker Ranch Co., 54 Wyo. 367, 92 P.2d 568, and Merrill v. Bishop, 69 Wyo. 45, 237 P.2d 186, requiring water officers to make diversion in accordance with determined priorities. The principle therein announced is without question the law of the State, but plaintiffs in the present situation find themselves without rights to the water and therefore not entitled to invoke such rule.
[253]*253(4) It is argued both directly and by implication that the plaintiffs’ lands could not be sold separate and apart because a water right cannot be a mere “floating right,” and further that the grantor Eaton sought to hold the water for purposes of an illegal sale. These points require no discussion because the validity of any water rights reserved by Eaton is not in issue in the present case. Neither do we pursue or resolve the arguments regarding abandonment of water rights or the legal standing of any persons to use the water originally appropriated for the lands now claimed to be owned by plaintiffs. Such problems may be resolved if and when they are properly presented to the court.
The record herein discloses no rights of plaintiffs, either pleaded or proved, and they have not shown themselves entitled to an injunction.
Affirmed.
[254]*254(No. 2804;
April 22nd, 1958;
324 Pac. (2d) 266)