Miscellaneous Issues Flashcards
Lateral Support Rule
If land is improved by buildings and an adjacent landholder’s excavation causes improved land to cave in, excavator liable only if NEGLIGENT.
Strict liability attaches to excavator’s actions only if P shows that because of D’s actions, P’s improved land would have collapsed even in its natural state (i.e. that improvements did not contribute to the land’s collapse).
Riparian Doctrine
The water belongs to those who own the land bordering the watercourse (streams, rivers, lakes) = riparians.
Riparians share the right of reasonable use of water. One riparian will be liable to others if her use unreasonably interferes with others’ use.
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 he happens to be a riparian owner.
Rights are determined by priority of beneficial use - First in Time, First in Right. The first to make beneficial use of watercourse has priority rights.
ANY beneficial use suffices to create the appropriation right, including agriculture
Groundwater Rights
Groundwater/Percolating water = water beneath the surface of the earth that is not confined to a known channel
Surface owner is entitled to make reasonable use of groundwater - use must not be wasteful. “reasonable” really just means can’t waste the water.
Surface Water Rights:
Surface water = water that comes from rain, springs, melting snow, and which has not yet reached a natural watercourse or basin.
Common Enemy Rule: landowner may change drainage/make improvements to combat the flow of surface water. (many courts modified to prohibit unnecessary harm to other’s land)
The Possessor’s Rights
Possessor has the right to be free of trespass and nusiance
Trespass = physical invasion; to remove trespasser, bring ejectment action
Nuisance = substantial and unreasonable interference with another’s land; bring nuisance action
Hypersensitive Plaintiff and Nuisance
No cause of action exists for nuisance where the problem is the result of the P’s super-sensitivity or specialized use.
Eminent Domain
Government’s 5th amendment power to take private property for public use in exchange for just compensation.
Takings may be Actual or Regulatory
Regulatory Taking
Government Regulation that destroys all economic use of property.
Zoning
Pursuant to police powers, government may enact statutes to reasonably control land use.
The Variance
allows flexibility in zoning
To receive approval for a variance, the proponent must show: 1) undue hardship if required to comply and 2) the variance won’t decrease neighboring property values.
Nonconforming Use
A once lawful, existing use now deemed non-conforming by a new zoning ordinance.
Nonconforming use cannot be required to be eliminated all at once unless just compensation is paid.
Exactions
Amenities the government seeks in exchange for granting permission to build
To be constitutional, exactions must be reasonably related both in nature and scope to the impact of the proposed development (the Dolan case!)
