Lateral Support & Water Rights Flashcards
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, when will the excavator be liable?
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 IF NEGLIGENT.
Does strict liability attach to the excavator’s actions if he seeks to improve land and causes that improved land to cave in?
Strict liability does not attach to the excavator’s actions unless plaintiff shows that, because of defendant’s actions, plaintiff’s improved land would have collapsed even in its natural state. No contributory role in land’s collapse. VA won’t recognize strict liability for harm to adjacent improved land.
What are the two major systems for determining the allocation of water in watercourses, such as streams, rivers, and lakes?
(1) the riparian doctrine AND (2) the prior appropriation doctrine
What is the riparian doctrine?
The water belongs to those who own the land ordering the water course. These people are known as reparians, who share the right of reasoanble use of the water. Thus, one riparian will be liable if his or her use unreasonably interferes with other’s use.
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 and individual regardless of whether or not he happens to be a reparian owner. 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.
What is considered groundwater, and what is the rule regarding groundwater?
Groundwater, also known as percolating water: Water beneath the surface of the earth that is not confined to a known channel. The surface owner is entitled to make reasonable use of groundwater. However, the use must NOT be wasteful.
What is surface water? What are the rules regarding suface water?
Surface Waters: Those which come from rain, springs or melting snow, and which have not yet reached a natural watercourse or basin. (1) THE COMMON ENEMY RULE - surface water is considered a nemisis (evil), a landowner may change drainage or make any other changes/
improvements on his land to combat the flow of surface water. Many courts have modified the common enemy rule to prohibit unnecessary harm to others land; (2) THE NATURAL FLOW THEORY - a landowner cannot alter the rate or manne rof natural flow of surface waters where such actions would injure others above or below him.
