LATERAL SUPPORT AND WATER RIGHTS Flashcards
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable if the plaintiff can prove what?
negligence.
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only in strict liability only if the plaintiff can prove?
plaintiff shows that, because of defendant’s actions plaintiff’s improved land would have collapsed even in it’s natural state.
(In other words, for strict liability to apply, plaintiff must show that the improvements on his land (for example, the shrubs, the fountain, the structures) did not contribute to his land’s collapse.)
What is the riparian doctrine?
The water belongs to those who own the land bordering the watercourse. These people are known as riparians who share the right or reasonable use of the water.
When will a riparian be laible?
one riparian will be liable if his or her use unreasonably interferes with the other use.
What are reasonable and unreasonable uses of water in a riparian jurisdiction?
Reasonable use would be household use. Unreasonable use would be commercial uses like to run a mill or irrigate a farm.
What is the prior appropriation doctrine?
The water belongs initially to the state, but the right to divert it and use it can be acquired by an individual regardless of whether or not he happens to be a riparian owner.
In the prior appropriation doctrine how are rights to water determined?
Rights are determined by prior beneficial use.
What is the norm for allocation in a prior appropriation doctrine jurisdiction?
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 is sufficient to create the appropriation right.
What is included in as a beneficial use in a prior appropriation doctrine jurisdiction?
Aggriculture
What is ground water also known as?
percolating water
What is ground water?
Water beneath the surface of the earth that is not confined to a known channel.
What is the surface owner entitled to do in the case of ground water?
The surface owner is entitled to make reasonable use of the ground water. However, the use must NOT be wasteful.
What are surface waters?
Waters which come from rain, springs or melting snow, and which have not yet reached a natural watercourse or basin.
Fro surface waters what is the common enemy rule? What can the landowner do in a common enemy rule jurisdiction?
surface water is a nemesis. It is considered an evil to be eradicated.
A landowner may change drainage or make any other changes/ improvements on his land to combat the flow of water.
What have many courts done to modify the common enemy rule?
Many courts have modified the common enemy rule to prohibit harm to other’s land.
