II. Landowner's Natural Rights Flashcards
Types of Landowner Natural Rights (A, B and C)
A. Right to exclude ((i) tresspass and (ii) private nuisance)
B. Right to lateral and subjacent support ((i) strict liability and (ii) negligence for subsidence)
C. Water rights ((i) riparian, (ii) first appropriation, (iii) percolating, and (iv) surface)
Right to Exclude
Trespass (physical invasion) and nuisance (interference with use and enjoyment)
Trespass
A trespass is an invasion of land, which may be by entry (or refusal to leave) or placement of a tangible object (or failure to remove) without permission.
Nuisance (& difference from Trespass)
A nuisance occurs where a person/entity (“offender”) uses their land in such a manner that creates an UNREASONABLY INTERFERENCE with another landowner’s (“injured”) interest in and right to quiet enjoyment of their land.
To recover at tort, injured must show actual damages.
It differs from a trespass, which involves the physical invasion of property. A nuisance involves no invasion.
Private Nuisance
There are two types of nuisance: public and private.
Private nuisance is a SUBSTANTIAL AND UNREASONABLE interference with plaintiff’s use and enjoyment of land.
(1) Pl interest in land / immediate right to possession
(2) substantial and unreasonable interference: offensive, inconvenience, annoying to average person in community
(3) Unreasonable: (A) means seriousness of actual harm outweighs any utility of Df actions OR (B) harm greater than required to bear without compensation
Public Nuisance
There are two types of nuisance: public and private.
Public Nuisance is an interference with a common right of the general public (e.g., health, safety, or property rights).
Elements are (1) substantial harm, (2) injury to public at large and (3) if private plaintiff, show of damages unique to those of public.
State the Rule: Lateral & Subjacent Support
Landowners have a right to physical support of their land in its natural state by both adjoining land and underground structures. When an adjoining landowner excavation causes subsidence, they may be (1) strictly liable for damage or (2) liable for damages due to negligence.
Bonus points:
- What’s the issue with the excavation? Excessive extraction of underground liquid deposits, causing subsidence.
- What is subsidence? Land caves in.
E.g. A and B own adjoining land. A has a machine factory on his. B is developing/excavating on hers. A’s factory buckles, then ultimately collapses.
State the Rule: Strict Liability or Negligence for Subsidence?
Strict liability will apply if the landowner/plaintiff shows weight of buildings did not contribute to land collapse. Otherwise, must show landowner/defendant’s negligence.
State the Rule: How would a landowner prove negligence causing subsidence?
They would have to assert that the landowner/defendant (1) breached duty of care (i.e., how a reasonably prudent LO under similar circumstances would have acted in the interests of adjacent owners) and (2) that the breach was the actual and proximate cause the subsidence and resulting damage to their land.
[Then work through elements - per torts/negligence].
Rights for water running past a property?
Riparian Rights: Landowner (riparian owners)
+ Adjacent to body of water
+ Right to make REASONABLE use
+ Can’t unreasonably interfere with another’s riparian rights
Rights once someone has begun using water source?
Prior Appropriation: Water is property of State
+ 1st person to make use of quantity for BENEFICIAL purpose
+ can continue to use THAT quantity for THAT purpose
Subsequent users permitted
+ cannot infringe on 1st user
Rights to water seeping through the ground?
Percolating Water:
+ Reasonable use
+ Cannot permit waste (e.g., maybe taking it off the property?)
Duty with respect to excessive rainfall?
Surface Water (Common Enemy Doctrine)
+ Common enemy of all landowners
+ Each responsible for protecting own land (no greater responsibility for folks uphill vs. downhill)
Modern rulings (most states)
+ Act reasonably to protect
+ Avoid unnecessary damage to others
