19. Natural Rights

Question 1

When is neighbour liable to landowner for damages caused by neighbour’s excavation on his own land?

Answer 1

Owner’s land
- If Neighbour causes subsidence towards Owner’s land => Neighbour is ‘strictly’ liable

Owner’s land with buildings

• If Owner’s land would have collapsed in natural state (with NO buildings) + Neighbour causes damage towards Owner’s land => Neighbour is ‘strictly’ liable
• If Owner’s land would NOT have collapsed in natural state (due to buildings) + Neighbour causes damage towards Owner’s land BUT Neighbour was negligent => Neighbour is ‘negligently’ liable

Question 2

Who owns water in watercourses (lakes/rivers/streams)?

Answer 2

Riparian doctrine

• Owner of land bordering watercourse => Owns water
• NOT unreasonable interfere with another’s riparian rights

Prior appropriation doctrine
- Beneficial/Productive user of watercourse => Owns water

Question 3

Who owns groundwater (percolating water underground)?

Answer 3

Absolute ownership doctrine

• Owner of overlying land => Owns water
• Owner can export water

Reasonable use doctrine

• Owner of overlying land => Owns water
• Owner can export water (as long as he does NOT harm others’ rights)

Correlative rights doctrine

• Owners of overlying land => Owns water (as joint tenants)
• Owners can export water (reasonable amount)

Appropriative rights doctrine
- User of water => Owns water

Question 4

Can landowners re-direct surface water channels?

Answer 4

Natural flow theory
- NO

Common enemy theory

• Yes (protective measures to remove water)
• Otherwise damage to other’s land => Negligently liable

Reasonable use theory
- Maybe (must balance utility vs danger of removal)

Question 5

Can landowners capture surface water?

Answer 5

Yes

Question 6

Are landowners entitled to ownership of airspace above their land?

Answer 6

No

- UNLESS removal of excessive noise

Question 7

What are subjacent support rights?

Answer 7

Landowners may allow TP to mine/tunnel/build underground parking structures => TP must adequately support surface structures

Question 8

When is TP with subjacent rights liable for damage to land?

Answer 8

If structures existed at time of conveyance => TP is strictly liable

If structures existed after conveyance => TP is negligently liable