Natural Land Rights and Water Rights

Question 1

Lateral Support

Answer 1

Right to have land supported in its natural state by adjoining land

Landowner is strictly liable if his excavation causes adjacent land to subside

Adjacent landowner is strictly liable for damage to land/buildings caused by excavation ONLY IF it’s shown the land would’ve collapsed in its natural state

Otherwise liable only if excavation was negligent

Question 2

Subjacent Support

Answer 2

An underground occupant of land (e.g., mining company) must support the surface and buildings existing on the date the subjacent estate was created

Liability for subsequently erected buildings requires NEGLIGENCE

Question 3

Watercourses (Streams, Rivers, Lakes): Riparian Doctrine

Answer 3

Water belongs to those who own land bordering the watercourse and attach to all contiguous tracts held by the same owner as long as one abuts the water

Riparian owners can use water only in connection with the riparian parcel

Natural Flow Theory = riparian owner’s use resulting in substantial or material diminution of the water’s quantity, quality, or velocity is enjoinable

Reasonable Use Theory = all riparians share right of “reasonable use” of the water

• Not enjoinable unless it substantially interferes with the use of other riparian owners)
• Courts balance utility of owner’s use against the gravity of the harm
• Factors: alteration of flow, purpose of use, pollution, extent of use, destination of water taken, and miscellaneous conduct that may give rise to litigation

Natural v. Artificial Use = natural uses (human uses) prevail over artificial uses (irrigation, manufacturing)

Prior Appropriation Doctrine = individuals acquire rights by actual use
- Priority is determined time of appropriation (first in time has senior rights)

Question 4

Groundwater (Percolating/Well Water): 5 Doctrines

Answer 4

Absolute Ownership Doctrine = owner of overlying land can take all the water she wishes, for any purpose, including export
- a few states

Reasonable Use Doctrine = like absolute ownership, but exporting is allowed only if it does not harm other owners who have rights in the same aquifer
- many eastern states

Correlative Rights Doctrine = owners of overlying land own the underground water basin as JTs and each is allowed a reasonable amount for his own use
- some states

Appropriative Rights Doctrine = priority of use (not ownership of overlying land) is determinative
- many western states

Restatement Approach = surface owner may pump groundwater unless it:

(1) unreasonably arms neighboring landowners
(2) exceeds the pumper’s reasonable share, or
(3) directly and substantially affects surface waters and unreasonably harms surface water users
- a few states

Question 5

Surface Waters (Flood Water or Runoff)

Answer 5

TX = Rule of CAPTURE

• Landowner can capture and use surface water within her boundaries for any purpose she desires (even if it drains water from neighbor’s well)
• 3 limits: can do it (1) maliciously, (2) can’t waste water, and (3) can’t cause subsidence of neighbor’s land
• If landowner’s property is damaged due to unlawful diversion, he may recover damages for the harm caused

Natural Flow Theory = owners cannot alter natural drainage patterns

• followed by many states
• often softened to allow “reasonable changes”

Common Enemy Theory = owner can take any protective measures to get rid of the water

• followed by many states
• often modified to prohibit unnecessary damage to others’ lands

Reasonable Use Theory = balancing utility of the uses against the gravity of the harm
- growing trend to apply this theory

Question 6

Right to Exclude: Remedies for Possessor

Answer 6

Trespass = land invaded by tangible physical object

Private nuisance = land invaded by intangibles such as odors or noise

Continuing trespass = land repeatedly invaded by trespasser

Ejectment or unlawful detainer = removing trespasser or tenant (can be joined with demand for $ damages)