The opinion
HART, J., concurring.
I concur in the judgment on the
ground last stated in the opinion of Justice Burnett, viz.: That the riparian rights attempted to be assessed are not so described in the assessment as to conduce to a ready or definite
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identification of the particular water-rights thus sought to be burdened. As pointed out by Justice Burnett, the failure thus to describe said riparian rights is plainly repugnant to the requirements of section 3650 of the Political Code.
The findings and conclusions of law, however, appear to be susceptible of inferences which might be so construed as to establish the principle that riparian rights are not capable of being assessed separately from the lands to which they are appurtenant, and upon this point I am not now prepared to express an opinion satisfactory to myself. But it may not be amiss to suggest that, if such rights may be granted without granting the lands to which they are appurtenant, it would seem that necessarily they may be assessed as property separately from such lands, unless it may justly be held that, although so granted or conveyed to another, they are still to be included in the assessment of such lands, and thus assessed to the grantor of such rights. Manifestly, if, having been so granted, such rights may be assessed to the grantee, who has not acquired the lands to which they are appurtenant, then they may be assessed separately from such lands while the title to both the lands and the rights still remain in one person. Of course, as Justice Burnett declares, if such an assessment is permissible, the description of the riparian rights in the assessment must be such as clearly to show that such rights are connected with or appurtenant to the lands of which they are a part and parcel.
The obvious proposition may also be suggested that riparian rights, although in legal contemplation a part and parcel of the lands to which they are appurtenant, are a mere usufruct and, therefore, when it comes to the assessment of lands to ° which they are appurtenant, cannot be governed by the principle,
cujus est solum ejus est usque ad
coelum,
et ad inferos.
However, as stated, on the propositions here suggested I express no opinion, since there is no necessity therefor in this case.