When land is sold, can the water right be retained by the seller?

The answer to this question is “yes.”  However, several considerations should be made.  Generally, when land is sold or otherwise deeded, the water right passes with the conveyance of the land. 

However, a water right is a real property right.  Consequently, a water right may be severed from the land from which it is associated.  However, this may present special problems that should be considered.  A water right in Kansas generally must be put to a beneficial use.  Thus, if the water right is retained by the grantor, care should go into determining how the water right will be appropriated.  Other changes to the water right may be necessitated by the transaction.

If one wishes to sever the water right from the land, special care should go into drafting the deed or other instrument of conveyance.  Special language should be added to connote that the water right will be retained by the grantor.