BAR FLASHCARDS - P17 (1)
RIGHTS INCIDENTAL TO OWNERSHIP OF LAND (NATURAL RIGHTS)
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RIGHTS INCIDENTAL TO OWNERSHIP OF LAND (NATURAL RIGHTS)
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IN GENERAL
An owner of real property has the exclusive right to use and possess the surface, the airspace, and the soil of the property.
RIGHTS TO LATERAL AND SUBJACENT SUPPORT OF LAND
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Rights to LATERAL SUPPORT
- Right to have land supported in NATURAL STATE (no buildings).
- If landowner causes adjacent land to subside:
– Land in natural state: Strict Liability
– Land improved: Liability of Negligent.
Ownership of land includes the right to have the land supported in its natural state by adjoining land.
a. Support of Land in Natural State: A landowner is strictly liable if their excavation causes adjacent land to subside (meaning, slip or cave in).
b. Support of Land with Buildings: If land is improved by buildings and an adjacent landowner’s excava- tion causes that improved land to cave in, the excavator will be liable only if negligent. However, strict liability will apply to the defendant excavator’s actions if the plaintiff shows that, because of the defen- dant’s actions, the plaintiff’s improved land would have collapsed even in its natural state. In other words, for strict liability to apply, plaintiff must show that the improvements on their land (for example, the shrubs, the fountain, the structures) did not contribute to their land’s collapse.
Rights to SUBJACENT SUPPORT
An underground occupant of land (for example, a mining company) must support the surface and buildings existing on the date the subjacent estate was created.
Liability for subsequently erected buildings requires negligence.
WATER RIGHTS
Different rules apply to watercourses, groundwater, and surface waters.
Watercourses (Streams, Rivers, and Lakes)
There are two major systems for determining allocation of water in watercourses: the riparian doctrine and the prior appropriation doctrine. A boundary line also can be affected by accretion or avulsion.
Watercourses (Streams, Rivers, and Lakes): Riparian Doctrine
Riparian: Under this doctrine, the water belongs to those who own the land bordering the watercourse. Riparian rights attach to all contiguous tracts held by the same owner as long as one of the tracts abuts the water. Riparian owners can use water only in connection with the riparian parcel.
- Water belongs to those who own land bordering watertcourse.
Natural Flow Theory: Under this theory, a riparian owner’s use is enjoinable if it results in substantial or material diminution of the water’s quantity, quality, or velocity.
Reasonable Use Theory: Under this theory, which is the most common, all riparians share the right of “reasonable use” of the water (that is, one owner’s use is not enjoinable unless it substantially interferes with the use of other riparian owners). In determining “reasonable” use, courts balance the utility of the owner’s use against the gravity of the harm. Six factors are helpful in making this determination: alteration of flow, purpose of use, pollution, extent of use, desti- nation of water taken, and miscellaneous conduct that may give rise to litigation.
- Riparians share their land, reasonable use.
Natural vs. Artificial Use: Under either theory, natural uses (human uses, for example, consumption, gardening) prevail over artificial uses (for example, irrigation, manufacturing).
Watercourses (Streams, Rivers, and Lakes): Prior appropriation doctrine
- water belong to state
- right to divert/use can be acquired through actual use (priority of benefical use)
Prior Appropriation Doctrine: Under this doctrine, the water initially belongs to the state, but the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a riparian owner. Appropriative rights are determined by priority of beneficial use. The norm for allocation is first in time, first in right. Thus, a person can acquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropriation right. Note that an appropriative right can be lost by abandonment.
Groundwater (Percolating Water)
Groundwater is water beneath the surface of the earth that isn’t confined to a known channel. Four doctrines determine rights in groundwater:
a. Absolute Ownership Doctrine: This doctrine is followed by only a few states. The owner of overlying land can take all the water they wish, for any purpose, including export.
b. Reasonable Use Doctrine: Many eastern states follow this doctrine. It is like absolute ownership, but exporting is allowed only if it does not harm other owners who have rights in the same aquifer.
c. Correlative Rights Doctrine: In some states, owners of overlying land own the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use.
d. Appropriative Rights Doctrine: This doctrine is followed in many western states. Priority of use (not ownership of overlying land) is determinative.
e. Restatement Approach: A few states follow the Restatement approach, under which a surface owner may pump groundwater unless it (1) unreasonably harms neighboring landowners, (2) exceeds the pumper’s reasonable share, or (3) directly and substantially affects surface waters and unreason- ably harms surface water users.
Surface Waters
Surface water is water without a channel that passes over land, such as water coming from rain, springs, or melting snow, which has not yet reached a natural watercourse or basin.
A landowner can use surface water within their boundaries for any purpose they desire. Questions on surface water usually concern liability for changing natural flow by dikes, drains, and so on. Liability depends on which theory the state follows.
a. Natural Flow Theory: Under this theory, followed by many states, owners cannot alter natural drainage patterns. This rule has been “softened” in most states to allow “reasonable changes.”
b. Common Enemy Theory: Under this theory, followed by many states, an owner can take any protective measures to get rid of the water or combat its flow (for example, dikes or drainage changes). The rule has been modified by many courts to prohibit unnecessary damage to others’ lands.
c. Reasonable Use Theory: There is a growing trend to apply this theory, which involves balancing the utility of the use against the gravity of the harm.
Surface Waters: Common enemy rule
- Owner can take any protective measures to get rid of surface water/combat its flow. But must not intefere with others.
Common Enemy Theory: Under this theory, followed by many states, an owner can take any protective measures to get rid of the water or combat its flow (for example, dikes or drainage changes). The rule has been modified by many courts to prohibit unnecessary damage to others’ lands.
Surface Waters:
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Capturing surface water
A landowner can capture (for example, by a dam or in barrels) as much surface water as they wish.
Surface water can be diverted to any purpose on or off the land. Owners below have no cause of action unless the diversion was malicious.
