miscellaneous Flashcards
miscellaneous property issues
lateral support water rights possessor rights eminent domain zoning
miscellaneous property issues
lateral support
If land is improved by building and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if negligent.
miscellaneous property issues
lateral support
SL
SL does not attach to the excavator’s actions unless P shows that b/c of D’s actions, P’s improved land would have collapsed, even in its unadorned/unimproved state.
IOTW, for SL to apply, P must show that the improvements on his land did not contribute to the land’s collapse.
miscellaneous property issues
water rights
2 major systems for determining the allocation of water
groundwater
surface waters
miscellaneous property issues
water rights
2 major systems for determining the allocation of water
2 major systems for determining the allocation of water in watercourses (streams, rivers, lakes):
Riparian doctrine
Prior appropriation doctrine
miscellaneous property issues
water rights
2 major systems for determining the allocation of water
riparian doctrine
Water belongs to those who own the land bordering the watercourse.
These people are known as riparians and share the right of reasonable use of the water.
Thus, one riparian will be liable if his use unreasonably interferes w/other’s use.
miscellaneous property issues
water rights
2 major systems for determining the allocation of water
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.
miscellaneous property issues
water rights
2 major systems for determining the allocation of water
prior appropriation doctrine
How are rights determined under prior appropriation
Rights are determine by priority of beneficial use.
The norm for allocation is FIT, FIR.
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.
miscellaneous property issues
water rights
groundwater
Groundwater, aka percolating water, is the water beneath the surface of the earth that is not confined to a known channel.
miscellaneous property issues
water rights
groundwater - rights
A surface owner is entitled to make reasonable use of groundwater.
However, the use must not be wasteful.
miscellaneous property issues
water rights
surface waters
Waters which come from rain, springs or melting snow, and which have not yet reached a natural watercourse or basin.
miscellaneous property issues
water rights
surface waters
common enemy rule
Surface water is a nemesis. (common enemy)
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 other’s land.
miscellaneous property issues
possessor’s rights
The possessor of land has the right to be free from trespass and nuisance.
miscellaneous property issues
possessor’s rights
trespass
Trespass - invasion of land by physical object.
To remove a trespasser, bring an ejectment action.
miscellaneous property issues
possessor’s rights
private nuisance
private nuisance: substantial, unreasonable interference w/another’s land use.
Unlike trespass, nuisance does not require physical invasion. Thus, odors and noise could give rise to a nuisance but not a trespass.
NO HYPERSENSITIVES for nuisance
