Non-Volitional "Natural" Interests in Land Flashcards
Nuisance
Use of property that UNREASONABLY INTERFERES with use and enjoyment of someone else’s property
Distinguish Nuisance from Trespass
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
Harm from Nuisance can be…
Visual
Auditory
Smell
Physical
The Nuisance “State of Mind”
No evil defendant Generally NO FAULT req'd to hold defendant liable - No Negligence req'd - No bad intent - No knowledge req'd
Factors courts balance to determine Nuisance
5
1) Suitability of location of nuisance
2) Compliance with zoning laws
3) Priority
4) Social utility of activity
5) Cost to avoid harm
Nuisance:
Suitability of Location
How appropriate is the use given its location?
ex: refinery next to a school
Nuisance:
Compliance with Zoning Laws
If in compliance, helps prove not a nuisance but NOT conclusive proof
Nuisance:
Priority of Offending Activity
Who was there first?
Usually whoever was there first will win
- Right to farm
Nuisance:
Social Utility of Activity
The higher the social value of the nuisance, the less likely it will be ordered to stop
Nuisance:
Cost of Avoiding Harm
Cost of plaintiff moving and cost of defendant abating
Remedies for Nuisance
Injunction or Money damages (past and future harm compensation)
Support of Land
Lateral support
Subjacent support
Lateral Support of Land
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
Subjacent Support of Land
Support underneath when sub-surface rights separated from surface rights
- mining but not drilling for oil
Types of Water
3
Surface Water
Water in watercourses
Groundwater
Surface Water
Free running water
- water which does not have a well-defined channel
- snow, rain
Retaining Surface Water
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
Getting Rid of Surface Water
Natural Servitude
Common Enemy Rule
Reasonable Use Rule
Getting Rid of Surface Water:
Natural Servitude
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
Getting Rid of Surface Water:
Common Enemy Rule
CL LO can take steps to: - remove water - prevent water from coming onto land - anything within reason
Getting Rid of Surface Water:
Reasonable Use Rule
ML
must be reasonable
Getting Rid of Surface Water:
Which does TX follow?
Natural Servitude
Water in Watercourses
Water which runs in a defined course
- rivers, streams
Watercourse Systems
Riparian
Prior Appropriation System
Riparian Land
Land that is physically adjacent to the watercourse AND in the same watershed as the watercourse
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?
No, cannot pipe the water over or use the water in any way on the land beyond the watershed
Rights of the Riparian
Absolute Rights
Correlative Rights
Absolute Rights of Riparian
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)
Correlative Rights of Riparian
Non-domestic use CL: Natural flow - water as a source of energy ML: Reasonable use - balance needs of upstream and downstream)
Prior Appropriation System
Rights obtained by:
- Prior use (CL)
- Permits from gov’t (ML)
Doctrines of Prior Appropriation System
2
Colorado Doctrine
California Doctrine
Colorado Doctrine
Abolished all Riparian Rights
California Doctrine
Coexistence; riparian rights and prior appropriation coexist
TX follows
Public Rights in Water
Navigable
Tidal
Many courts would stop the use of the water beyond the watershed divide even if the lower riparian is not damaged. Why?
Afraid that if allowed to continue, the upper riparian would gain prescriptive rights to water if Plaintiff eventually became damaged
Changing size of Riparian Land Approaches
2
Source of Title
Unity of Title
*use when Riparian land owner buys land adjacent to his current land
Changing size of Riparian Land Approaches:
Source of Title
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
Changing size of Riparian Land Approaches:
Unity of Title
Adjoining tracts of land under common ownership becomes riparian
- causes great uncertainty and fear in lower riparians
Groundwater
2
Percolating water
Underground stream
Percolating Water
Water that filters down from the surface and goes into aquifers
Underground Stream
Water that flows within defined channel under the ground
Ownership of Percolating Water
3
CL Rule
American Rule
Prior Appropriation
CL Rule of Owning Percolating Water
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
American Rule of Owning Percolating Water
Reasonable Use Rule
- off-land use usually unreasonable
- key factor: will new rain/snow recharge aquifer to where it was before?
Prior Appropriation of Percolating Water
Amount able to take out in the past is the amount able to take out now
Oil and Gas Ownership while Still in the Ground
1) Not owned until extracted
2) Ownership in place (TX)
3) Owned by the gov’t, not the surface owner
Oil and Gas Ownership:
Ownership in Place
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
Basic Process of Oil and Gas
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
Bonus
Owner is paid to enter into lease with oil company (even if land ends up dry)
Royalty
Owner is paid percentage of what is produced by the oil company
Airspace and Sunlight
General rule: can own the space you can use and occupy
CL: owned land to the center of the Earth to the stars
