Misc. Property

Question 1

What is the rule for lateral support?

Answer 1

If land is improved, and adjacent landowner’s excavation causes the improved land to cave in, P must show negligence

For Strict Liability to attach, P must show that land would have collapsed even in its unadorned state (that improvements didn’t contribute to the collapse)

Question 2

What are the two possible rules for water in watercourses (streams, rivers, and lakes)?

Answer 2

1. The riparian doctrine

2. The prior appropriation doctrine

Question 3

What is the riparian doctrine?

Answer 3

The water belongs to those who own the land bordering the watercourse

These riparians share the right of reasonable use of the water

One riparian will be liable if his use unreasonably interferes with others’ use

Question 4

What is the prior appropriation doctrine?

Answer 4

The water initially belongs to the state, but is acquired by individuals who use water, regardless of whether that person is a riparian owner

Rights are determined by priority of beneficial use (first in time, first in right)
(Any productive use, including agriculture, creates the right)

Question 5

What is the rule for groundwater rights?

percolating water

Answer 5

The surface owner is entitled to make reasonable use of groundwater
BUT, the use must not be wasteful

Question 6

What is the rule for surface water rights?

water from rain, springs, or melting snow—considered an affliction

Answer 6

Common enemy rule:
A landowner may change drainage or make any other changes or improvements on his land to combat the flow of surface water
(Many courts prohibit unnecessary harm to others’ land)

Question 7

What are a possessor’s rights?

Answer 7

To be free from:
Trespass
Nuisance

Question 8

What constitutes a trespass for possessor’s rights?

Answer 8

Invasion of land by physical object

Question 9

How do you remove a trespasser?

Answer 9

Bring an ejectment action

Question 10

What constitutes a private nuisance for possessor’s rights?

Answer 10

Substantial, unreasonable interference with another’s use and enjoyment of land
(does NOT require tangible physical invasion)

Question 11

What is the definition of eminent domain?

Answer 11

Government’s 5A power to take private property for public use in exchange for just compensation

Question 12

What constitutes an explicit taking?

Answer 12

Acts of government condemnation

e.g. State condemns your land to make a highway

Question 13

What constitutes an implicit/regulatory taking?

Answer 13

A regulation that, while not intended as a taking, has that effect:
An economic wipeout of your investment

Question 14

What is the remedy for a regulatory taking?

2

Answer 14

Government must either:

1. Compensate owner for the taking OR
2. Terminate the regulation, and pay the owner for damages that occurred while it was in effect

Question 15

What is the definition of zoning?

Answer 15

Pursuant to its police powers, government may enact statutes to reasonably control land use

Question 16

What are the requirements for a zoning variance?

Answer 16

Proponent of the variance must show:
1. Undue hardship
2. The variance won’t decrease neighboring property values
(granted or denied by administrative action, typically a zoning board)

Question 17

What is the rule for nonconforming uses under zoning ordinances?

Answer 17

A nonconforming use cannot be eliminated all at once, unless just compensation is paid
(otherwise, it’s an unconstitutional taking)

Question 18

What are unconstitutional exactions in the zoning context?

Answer 18

Exactions are those amenities government seeks in exchange for granting permission to build

To pass constitutional muster, exactions must be reasonably related in nature and scope to the impact of the proposed development