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Property > Non-Volitional "Natural" Interests in Land > Flashcards

Non-Volitional "Natural" Interests in Land Flashcards

1
Q

Nuisance

A

Use of property that UNREASONABLY INTERFERES with use and enjoyment of someone else’s property

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2
Q

Distinguish Nuisance from Trespass

A

Nuisance: protects use and enjoyment; physical intrusion NOT REQ’D but may exist; harm to land REQ’D

Trespass: protects possession; REQ physical intrusion but NOT harm to land

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3
Q

Harm from Nuisance can be…

A

Visual
Auditory
Smell
Physical

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4
Q

The Nuisance “State of Mind”

A 
No evil defendant
Generally NO FAULT req'd to hold defendant liable
- No Negligence req'd
- No bad intent
- No knowledge req'd
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5
Q

Factors courts balance to determine Nuisance

5

A

1) Suitability of location of nuisance
2) Compliance with zoning laws
3) Priority
4) Social utility of activity
5) Cost to avoid harm

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6
Q

Nuisance:

Suitability of Location

A

How appropriate is the use given its location?

ex: refinery next to a school

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7
Q

Nuisance:

Compliance with Zoning Laws

A

If in compliance, helps prove not a nuisance but NOT conclusive proof

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8
Q

Nuisance:

Priority of Offending Activity

A

Who was there first?
Usually whoever was there first will win
- Right to farm

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9
Q

Nuisance:

Social Utility of Activity

A

The higher the social value of the nuisance, the less likely it will be ordered to stop

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10
Q

Nuisance:

Cost of Avoiding Harm

A

Cost of plaintiff moving and cost of defendant abating

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11
Q

Remedies for Nuisance

A

Injunction or Money damages (past and future harm compensation)

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12
Q

Support of Land

A

Lateral support

Subjacent support

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13
Q

Lateral Support of Land

A

Support on the side
General Rule: STRICT LIABILITY
- no duty to take affirmative protective steps
- if remove natural support and replace with artificial support, duty to maintain arises

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14
Q

Subjacent Support of Land

A

Support underneath when sub-surface rights separated from surface rights
- mining but not drilling for oil

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15
Q

Types of Water

3

A

Surface Water
Water in watercourses
Groundwater

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16
Q

Surface Water

A

Free running water

  • water which does not have a well-defined channel
  • snow, rain
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17
Q

Retaining Surface Water

A

Governed by Rule of Capture

  • think of it like wild animals; if can catch it, you can keep it
  • usually not an issue; homeowners typically not concerned with catching water; more concerned with how to get rid of it
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18
Q

Getting Rid of Surface Water

A

Natural Servitude
Common Enemy Rule
Reasonable Use Rule

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19
Q

Getting Rid of Surface Water:

Natural Servitude

A

Civil Law Rule/Natural Flow Rule
- natural right not to interfere with anything
- LO’s right: water to naturally flow away
- LO’s duty: permit water to flow away
No alteration of natural contour allowed

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20
Q

Getting Rid of Surface Water:

Common Enemy Rule

A 
CL
LO can take steps to:
- remove water
- prevent water from coming onto land
- anything within reason
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21
Q

Getting Rid of Surface Water:

Reasonable Use Rule

A

ML

must be reasonable

22
Q

Getting Rid of Surface Water:

Which does TX follow?

A

Natural Servitude

23
Q

Water in Watercourses

A

Water which runs in a defined course

- rivers, streams

24
Q

Watercourse Systems

A

Riparian

Prior Appropriation System

25
Q

Riparian Land

A

Land that is physically adjacent to the watercourse AND in the same watershed as the watercourse

26
Q

If you own land physically adjacent to the watercourse that extends beyond the watershed divide, can you use the water from the watercourse on the part of land beyond the watershed divide?

A

No, cannot pipe the water over or use the water in any way on the land beyond the watershed

27
Q

Rights of the Riparian

A

Absolute Rights

Correlative Rights

28
Q

Absolute Rights of Riparian

A

No one can mess with these rights

  • Unlimited if no effect on flow (no restriction on use water)
  • Domestic use even if it affects flow (drink, cook, bathe)
29
Q

Correlative Rights of Riparian

A 
Non-domestic use
CL: Natural flow 
- water as a source of energy
ML: Reasonable use
- balance needs of upstream and downstream)
30
Q

Prior Appropriation System

A

Rights obtained by:

  • Prior use (CL)
  • Permits from gov’t (ML)
31
Q

Doctrines of Prior Appropriation System

2

A

Colorado Doctrine

California Doctrine

32
Q

Colorado Doctrine

A

Abolished all Riparian Rights

33
Q

California Doctrine

A

Coexistence; riparian rights and prior appropriation coexist

TX follows

34
Q

Public Rights in Water

A

Navigable

Tidal

35
Q

Many courts would stop the use of the water beyond the watershed divide even if the lower riparian is not damaged. Why?

A

Afraid that if allowed to continue, the upper riparian would gain prescriptive rights to water if Plaintiff eventually became damaged

36
Q

Changing size of Riparian Land Approaches

2

A

Source of Title
Unity of Title

*use when Riparian land owner buys land adjacent to his current land

37
Q

Changing size of Riparian Land Approaches:

Source of Title

A

Cannot enlarge Riparian land by purchasing adjoining tracts of land

  • once parcel of land no longer borders watercourse, it becomes non-riparian permanently
  • could lead to underutilization of resources
38
Q

Changing size of Riparian Land Approaches:

Unity of Title

A

Adjoining tracts of land under common ownership becomes riparian
- causes great uncertainty and fear in lower riparians

39
Q

Groundwater

2

A

Percolating water

Underground stream

40
Q

Percolating Water

A

Water that filters down from the surface and goes into aquifers

41
Q

Underground Stream

A

Water that flows within defined channel under the ground

42
Q

Ownership of Percolating Water

3

A

CL Rule
American Rule
Prior Appropriation

43
Q

CL Rule of Owning Percolating Water

A

Absolute Ownership Rule
English Rule
Rule of Capture

  • can withdraw unlimited amount but cannot be malicious or wasteful
  • movement of water is “secret, occult, and concealed
44
Q

American Rule of Owning Percolating Water

A

Reasonable Use Rule

  • off-land use usually unreasonable
  • key factor: will new rain/snow recharge aquifer to where it was before?
45
Q

Prior Appropriation of Percolating Water

A

Amount able to take out in the past is the amount able to take out now

46
Q

Oil and Gas Ownership while Still in the Ground

A

1) Not owned until extracted
2) Ownership in place (TX)
3) Owned by the gov’t, not the surface owner

47
Q

Oil and Gas Ownership:

Ownership in Place

A

Oil and gas could be lost if flows beneath another’s land

TX
Land is more valuable under this approach so the gov’t can receive more tax

48
Q

Basic Process of Oil and Gas

A 
Owner of land typically lacks financing
Owner leases property to oil company (or grants easement with profit)
- bonus
- royalty
Gov't regulates to prevent abuses
49
Q

Bonus

A

Owner is paid to enter into lease with oil company (even if land ends up dry)

50
Q

Royalty

A

Owner is paid percentage of what is produced by the oil company

51
Q

Airspace and Sunlight

A

General rule: can own the space you can use and occupy

CL: owned land to the center of the Earth to the stars

Property (7 decks)

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