Lateral Support/Water Rights/Eminent/Zoning

Question 1

Lateral Support

Answer 1

1. 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 he was negligent.
2. Strict liability does not attach to the excavator’s actions unless plaintiff shows that, because of defendant’s actions, plaintiffs improved land would’ve collapsed even in 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.)

Question 2

Water Rights: Riparian & Prior Appropriation

Answer 2

1. Water in watercourses, such as streams, rivers, and lakes
   
   1. ​The riparian doctrine: The water belongs to those who own the land bordering water course. These people are known as riparians, who share right of reasonable use of the water. Thus, on riparian will be liable if his or her use unreasonably interferes with other’s use.
   2. 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.
      
      1. 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 appropriation right.

Question 3

Water Rights: Ground & Surface Water

Answer 3

1. Groundwater, also known as percolating water
   
   1. _​_The surface owner is entitled to make reasonable use. However, the use must NOT be wasteful.
2. 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 nemesis.
   2. 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 to other’s land.

Question 4

Eminent Domain

Answer 4

1. Defined: Government’s power to take private property for public use in exchange for just compensation
2. Explicit takings: acts of governmental condemnation.
   
   1. For example, the government condemns your land to make way for a public highway.
3. Implicit or regulatory takings: a governmental regulation that, although not intended to be a taking, has the same effect.
   
   1. Think: economic wipeout of an investment.
4. The remedy for a regulatory taking: government must either:
   
   1. compensate owner OR
   2. terminate regulation and pay owner for damages that occur while regulation inf effect.

Question 5

Zoning

Answer 5

1. Defined: Pursuant to its police powers, government may enact laws to reasonably control land use.
2. The variance: The principal means to achieve flexibility in zoning.
   
   1. Proponent must show (1) undue hardship; (2) variance won’t decrease neighboring property values.
   2. The variance is granted or denied by adminstrative action, typically a zoning board.
3. The nonconforming use: A once lawful, existing use now deemed nonconforming by a new zoning ordinance. It cannot be eliminated all at once unless just compensation paid otherwise, it could be deemed an unconstitutional taking.
4. Unconstitutional exactions: are those ameneties government seeks in exchange for granting permission to build.
   
   1. To pass constitutional scrutiny, these exactions must be reasonably related both in nature and scope to impact of proposed development. IF NOT, exactions are unconstitutional.