ch. 2 owning real property Flashcards
real property vs. personal property
real property is rights in land and things attached to land.
personal property is moveable items and intangible things
Adverse Possession elements
1) actual possession (physically use land in same manner as reasonable owner would)
2) exclusive (cannot be shared with owner or public in general)
3) open and notorious (visible and obvious so that if owner made reasonable inspection he would become aware of adverse claim)
4) adverse and hostile (possession authorized by owner doesnt count)
5) continuous (as a reasonable owner’s would be)
6) for statutory period
T or F: possession of land is presumed to be subservient to owner, not possessor
True
Is psychological intent relevant to “adverse and hostile” element of Adverse Possession?
no, just objective actions
Disability and Adverse Possession
period for adverse possession will be extended due to A’s disability if A is unable to sue adverse possessor B during the statutory period
• Most states provide a period of time after the disability ends within which suit must be brought
• In many states, the disability must exist at the beginning of the adverse possession period
• Disability cannot be tacked
U.S. v. Causby: rights in the air
Landowner owns at least as much of the space above ground as he can occupy or use in connection with the land
taking: flights over private land are not taking unless so low and frequent as to be direct & immediate interference with enjoyment and use
Chance v. BP Chemicals: subsurface rights
• Subsurface rights in property includes the right to exclude invasions of the subsurface property that actually interfere with appellant’s reasonable and foreseeable use of the subsurface
Surface Water - Riparian system
eastern states generally adopted this system, which assigns water rights to each landowner whose property adjoins a watercourse. Over time, most states following this view also adopted the reasonable use doctrine, which allows a riparian owner to take water for reasonable uses o her land, but not to unreasonably interfere with the uses of other riparian owners
Surface Water - Prior Appropriations system
followed by many western states, the location of the owners land is irrelevant; instead water rights are allocated to the first person to divert the water for beneficial use. This ensures that an appropriator will not abuse her water rights, serving the same function as reasonable use doctrine
surface water - permit system
today many states require a permit for the diversion of surface water, so govt regulates amount of water that may be drawn
Ground water - reasonable use approach
dominant view is that a surface owner may use groundwater only for a reasonable use on overlying land
• Correlative rights: surface owner is entitled to a proportional share of the groundwater beneath his land
ground water - permit system
title is vested in the state so surface owner can obtain rights only via permit
TX applies Old English law regarding groundwater water
overlying landowners own the water beneath the surface: absolute ownership rule
• Works with the Right to Capture the water while it is under a landowern’s land: rations soli
• tends to result in inefficient Race to the Bottom: someone puts a pipe under and takes all the water out unless area has a ground water conservation district
Groundwater - which doctrine?
most states apply reasonable use
