Pg 43

Question 1

What are some factors to determine if something is a nuisance?

Answer 1

• The activity is not customary or suited for the area
  – it causes observable effects that most would think are disagreeable
  – the methods disturb more than others that are available
  – activity has little value to the defendant or is unimportant to society
  – it began after the plaintiff started using the land

Question 2

What does it mean that substantial harm is necessary for nuisance?

Answer 2

There must be large financial loss, observable damage to property, physical harm or mental anguish, expensive removal, long duration or unremitting, etc.

Question 3

Is coming to the nuisance considered to be a relevant factor in determining whether a nuisance exists?

Answer 3

Yes

Question 4

What is the standard for a nuisance?

Answer 4

someone of ordinary sensitivity making ordinary sensitive use of the land

Question 5

Would mental disturbance that comes from a cemetery or funeral home be considered to be a nuisance?

Answer 5

Yes, if it would engender fear to in ordinary people

Question 6

What can you recover in a nuisance suit?

Answer 6

Whatever damages can be proven. This could mean loss of rental value for a temporary nuisance, or market value for a permanent one

Question 7

What does it mean that the court has discretion for injunctions regarding a nuisance?

Answer 7

The court will balance the equities versus the hardships. So they may not stop a commercial enterprise if it provides a lot of jobs

Question 8

If the injury in a nuisance suit is slight, what would the remedy be?

Answer 8

Damages, not an injunction

Question 9

If someone has a privilege to enter land, how long does that privilege last for?

Answer 9

It only lasts as long as needed to accomplish the limited purpose of the privilege

Question 10

If you have a privilege to enter land, what is your liability regarding minor damage or substantial harm?

Answer 10

If it is just minor damage there is no liability, but you are liable for substantial harm or any harm caused by your negligence or your exceeding the limits of your privilege

Question 11

If a departing tenant, licensee, vendor, or mortgagor needs to remove items from the land, is that permissible?

Answer 11

Yes, those people can return within a reasonable time to remove things that they are entitled to possess

Question 12

What is the theory behind privileged entry onto land?

Answer 12

The claim of the entrant is stronger than the possessor’s right to exclude others (this includes police, fire, process servers, etc.)

Question 13

What are situations that someone can enter another person’s land without their express permission?

Answer 13

A private person can enter to retrieve his goods that accidentally entered the land, you can detour around blocked public highways, or do so to abate a private nuisance, etc.

Question 14

What are the two different kinds of rights that are involved in right to support?

Answer 14

Lateral and subjacent support

Question 15

What does it mean to have a “right to support“?

Answer 15

Possessors have a right against others for support of their land

Question 16

What is involved in lateral support?

Answer 16

Support from the sides. This deals with the vertical plane from adjoining lands of others. The land owner has a cause of action as soon as that support is removed, but does not have damages until some subsistence [sink/fall] causes actual damages

Question 17

Is it possible to get an injunction for lateral support before actual damage to your land occurs?

Answer 17

Yes but you cannot get damages until that has been sink/fall

Question 18

Can someone avoid getting in trouble for right to lateral support through providing artificial support?

Answer 18

Yes, artificial support can be given by installing a retaining wall or other device, and if it works, the defendant is not liable as long as he maintains it to a legally required standard

Question 19

To whom does the right to lateral support extend to?

Answer 19

Only adjacent landowners

Question 20

Is it possible to recover damage to a building because of removal of lateral support?

Answer 20

Yes.

Question 21

What is an example of being able to recover damages because of your neighbour’s removal of lateral support?

Answer 21

If your neighbour is excavating to put in a pool, and your land subsides into the hole, the neighbour is liable for taking away your lateral support

Question 22

What is the difference with regard to lateral support between your land being in its natural state and being improved with a building?

Answer 22

– Land in natural state: you have an absolute right to lateral support and your neighbour that is depriving you is strictly liable for damages.
– If the land is improved with a building: must ask why the land subsided. If it would’ve happened if the improvement was not there, then the neighbour is strictly liable. If it was because of the weight of the building, the neighbour is only liable if he was negligent

Question 23

What is involved in the right to subjacent support?

Answer 23

This is support from underneath. It is the right to have your land supported in a horizontal plane from underlying strata of earth that is owner occupied by others.

Question 24

What is the difference between lateral support and subjacent support?

Answer 24

Lateral is support from the sides and subjacent is support from underneath

Question 25

When do you often see an issue regarding subjacent support?

Answer 25

When there has been a severance of layers of earth under the estate that are owned by others

Question 26

What is the split in authority regarding whether or not underground water is included in liability for subjacent support?

Answer 26

– Majority: support is from solid substances in the earth, not underground water
– restatement: if the neighbour removes so much underground water that it drains water from the plaintiff’s land and causes subsistence, he is liable

Question 27

If a company buys a vein of mineral rights that runs under your land, and they dig for those, and your land falls in, what happens?

Answer 27

The land is absolutely entitled to subjacent support, so they would be strictly liable for damages that includes improvements existing at the time that the underground rights were granted. If improvements were added after that time, there is only liability if the person was negligent in depriving you of subjacent support

Question 28

what is the burden that the defendant has in a suit for subjacent support?

Answer 28

To show that the land would not have subsided in an unburdened condition, but that instead the buildings on the land are what caused the subsiding (it’s super hard to show, so the plaintiff usually wins)

Question 29

What are riparian rights?

Answer 29

Rights to streams and lakes

Question 30

What does it mean to be a riparian proprietor?

Answer 30

You own land with a boundary on a natural stream, pond, or lake, and you have a right to have the body of water remain in its natural quantity and quality (more or less).

Question 31

What is the rule regarding how much you are allowed to use water that touches your land?

Answer 31

You can use water to whatever extent is reasonable in light of other riparian owners. It is smart on an exam to figure out:

• how many other riparian owners there are
• how much water there is
• and how much use can reasonably be made of it without unreasonably interfering with other riparian owners

Question 32

What are the two conflicting views with regard to riparian rights?

Answer 32

• modern reasonable use doctrine

- common law prior appropriation system

Question 33

What is involved in the modern reasonable use doctrine regarding riparian rights?

Answer 33

The riparian owner can make any reasonable use of the water if it doesn’t unreasonably interfere with another owner’s opportunity for reasonable use.

Water is meant to be used to serve human endeavors. This looks at all factors including: the purpose of the use, the economic value and importance to the community and owners, social value, how much it impinges on other riparian owners, appropriateness to the body of water, costs, practicality of adjusting use, etc.

Question 34

What is involved in the common law prior appropriation system with regard to riparian rights?

Answer 34

The first person to make use of the water for a beneficial purpose gets to continue to use it. This ensures that scarce resources are put to use.

Later claimants can diminish others’ rights by showing a need for water for a preferred beneficial purpose. Generally this is under a state agency’s control, and the agency gives permits, resolves disputes, and enforces codes

Question 35

What is a navigation servitude?

Answer 35

given on navigable water where the fed government uses the commerce clause to regulate or improve navigation and regulate traffic and license buildings like dams.

Private riparian rights are subject to servitudes by the government to license things under navigation power, so if a riparian owner’s right is interfered with this way, it is subject to that power, and the riparian owner has no redress for its loss.

Question 36

What are different things that are considered to be underground water?

Answer 36

Water in aquifers, natural springs, pools, or wells

Question 37

What are rights to underground water?

Answer 37

• If water flows in a defined underground stream: it is treated the same as if the stream was flowing on the surface of the water
  – percolating water that is diffused and seeps through the strata: three standards apply

Question 38

What are the three standards that apply to percolating water:

Answer 38

– absolute ownership doctrine
– reasonable use doctrine
– California correlative rights

Question 39

What is involved in the absolute ownership doctrine regarding rights to underground percolating water?

Answer 39

The land possessor can withdraw as much water as he wants for whatever purpose if it is not malicious

Question 40

What is involved in the reasonable use doctrine for percolating underground water?

Answer 40

The use must be reasonable and if it depletes the water supply, that is OK unless it was malicious or wasteful. Water can be taken and used elsewhere only to the point of injuring the owners in the aquifer

**This is the majority approach

Question 41

What is involved in the California correlative rights approach to percolating underground water?

Answer 41

Owners have equal rights to put the water to beneficial use but they cannot seriously deplete their neighbour’s supply. Water can only be transported elsewhere if the owners have been fully supplied

Question 42

What are examples of diffuse surface water?

Answer 42

Drainage water from rain/melting snow, springs that run over the earth’s surface but are not a stream, etc.

Question 43

What are some problems that can come up regarding diffuse surface water?

Answer 43

If an owner wants to remove this water and put it onto his neighbour’s land who doesn’t want it, or if one neighbour wants to use it but the other has impounded it first, etc.

Question 44

What is the rule regarding the impoundment of diffuse surface water?

Answer 44

Whoever impounds it can have it all unless it was malicious

Question 45

What is the three approaches if an upper owner increases the quantity or force of surface water flowing onto a lower owner’s land or a lower owner backs up water that floods higher land?

Answer 45

– Common enemy doctrine
– civil law rule
– reasonable use doctrine

Question 46

What is involved in the common enemy doctrine regarding diffuse surface water?

Answer 46

A land owner can use any way to remove it and he is not liable to his neighbors. Surface water is the enemy

Question 47

What is involved in the civil law rule regarding diffuse surface water?

Answer 47

An owner that interferes with the natural flow of surface water is strictly liable for harm that it causes to his neighbors. The land has a servitude favours the neighbours so natural drainage will not be altered.

Question 48

What is involved in the reasonable use doctrine with regard to diffuse surface water?

Answer 48

The owner is privileged to make reasonable use of the land and to alter surface water until it causes an unreasonable interference with the neighbours’ use. This considers factors such as: the necessity of alteration, acting with care, better methods being available, degree of harm, etc.