Lateral Support, Water Rights, and Possessor's Rights Flashcards
Neighbor (N) excavates his property and causes your land to cave in. You have improved your land (i.e. built a house, shrubs, patio, fountain, pool, etc. on it). When is the excavator liable?
Must prove excavator was negligent OR
Your land would have caved in because of the excavation even without your improvement.
- that your improvement didn’t contribute to the collapse.
What are the two major systems for determining water rights?
- Riparian doctrine
2. Prior appropriation doctrine
What is the riparian doctrine?
Water belongs to those who own land bordering the watercourse (the riparians). They share the right of “reasonable use” of the water.
When is a riparian liable because of their use of water?
Riparians are only liable to each other for unreasonable interference with others’ use.
What is the prior appropriations doctrine?
Water belongs initially to the state, but the right to divert it and use it is acquired by priority of beneficial use.
[First in time, first in right]
Do you have to live near the water to have rights to it under the prior appropriations doctrine?
No - riparian status is irrelevant.
How does a person acquire water rights in a prior appropriations jurisdiction?
By being the first to divert the water for a beneficial use. Any productive or beneficial use (including for agriculture) will suffice.
Who has rights over groundwater?
The surface owner is entitled to make reasonable use out of the ground water - so long as that use is NOT WASTEFUL.
What is the common enemy rule?
Applies to surface waters (from rain, snow, springs, etc. that are pooling on your property).
Surface water is considered an evil to be eradicated at all costs. A landowner can drain/make any other changes to the land to combat the flow at all costs.
How have most jurisdictions modified the common enemy rule?
Prohibit the landowner from getting rid of the surface water in a way that unnecessarily harms others’ land.
What is trespass?
Invasion of land by physical object (person or thing).
What can a possessor due to get rid of a trespasser?
Bring an ejectment action.
What is a private nuisance?
substantial and unreasonable interference with another’s use and enjoyment of land.
Does an invasion have to be physical to constitute a nuisance?
No - light, odor, noise, etc. can be nuisance if unreasonably interfere - even though they would not give rise to a trespass.
If plaintiff is hypersensitive and D’s activity is making it impossible for her to use/enjoy her land - nuisance?
No - hypersensitivity of plaintiff or plaintiff’s specialized use of land will not be relevant to a nuisance finding.
If a reasonable person would not be disturbed - no nuisance even if P is actually disturbed by D.
