Land Rights Incidental To Ownership

Question 1

Lateral Support

Answer 1

Ownership of land includes the right to have land supported in its natural state by adjoining land; landowners can be liable for excavations that cause damage to adjacent land

• Land in natural state—strict liability
  » D landowner is strictly liable if excavation damages P’s adjacent land (i.e., D is liable even if he uses utmost care)
• Buildings on land—for D to be held strictly liable for damage to buildings, P must show his land would have collapsed in its natural state (i.e., absent buildings on the land) due to D’s excavations
  » Negligence—if D is negligent in excavating, he is liable for loss or damage to adjacent land and buildings even if it would not have collapsed in its natural state

Question 2

Subjacent Support

Answer 2

Underground (subjacent) structures must support surface structures existing when the subjacent estate was created
* Subjacent structures include parking garages, tunnels, mines, etc.
* Liability:
» Strict liability—subjacent owners are strictly liable for failure to support surface land and pre-existing surface structures
» Negligence—subjacent owners are negligent for failure to support subsequently constructed buildings

Question 3

Water Rights in Watercourses

Answer 3

Land bordering watercourses (natural or artificial bodies of water, e.g., lakes and rivers) is governed by either the riparian doctrine or the prior appropriation doctrine.

Question 4

Riparian Doctrine

Answer 4

Water belongs to those who own land bordering the watercourse. Two theories:
1. Reasonable use theory (majority) — riparian owners share rights to reasonable use and are liable to other owners if their use unreasonably interferes with other owners’ use
» Balance utility of use vs. gravity of harm
2. Natural flow theory (minority) — riparian owners may be enjoined for any use resulting in a substantial or material reduction in others’ water quantity, quality, or velocity

• Under both theories, natural uses (e.g., household use) prevail over artificial uses (e.g., for manufacturing or irrigation)

Question 5

Prior Appropriation Doctrine

Answer 5

Water rights are originally acquired by actual use.

• Priority of beneficial use determines rights to water.
  » e.g., first individual to make a beneficial use of water (i.e., productive use) has superior legal right to its use

Question 6

Water Rights in Groundwater

Answer 6

Water beneath the surface not confined to a known channel (e.g., water in wells)

• Different states use different approaches – most common are:
  » Reasonable use – used in many eastern states.
  » Prior appropriation – used in many western states.

Question 7

Water Rights in Surface Water

Answer 7

Water from rain, springs, or other runoff that has not yet reached a natural watercourse

• Landowners can generally use surface water as they please, but may be liable for interrupting its flow in a way that impacts other owners
• Liability depends on which theory applies:
  » Natural flow theory — owners cannot unreasonably alter natural drainage
  » Common enemy theory — owners can do anything to change drainage or combat flow unless it causes unnecessary damage to others’ land
  » Reasonable use theory — utility of use is balanced against the gravity of harm from that use