Property - Water Rights,, Nuisance, Eminent Domain and Zoning Flashcards
Quick note on the rule for LATERAL SUPPORT
If land is improved by buildings and an adjacent landowner’s excavation causes that improved land to cave in, the excavator will be liable only if NEGLIGENT
Strict liability does not attach to the excavator’s actions unless plaintiff shows that, because of defendant’s actions, plaintiff’s improved lands could have collapsed even in its NATURAL STATE*
(in other words, for strict liability to apply, P must show that the improvements on his land (e.g. the shrubs, the fountain, the structures) did not contribute to his land’s collapse (VERY DIFFICULT STANDARD - strict liability almost never applies)
WATER RIGHTS - 2 major systems
(1) Riparian Doctrine
(2) Prior Appropriation Doctrine
Riparian Doctrine
The water belongs to those who own the land BORDERING THE WATER COURSE
- These people are known as “riparians”, who share the right of REASONABLE use of the water
- THUS one riparian will be liable if his or her use UNREASONABLY interferes with others’ use
The PRIOR APPROPRIATIONS 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 or not he happens to be a riparian owner
RIGHTS are determined by PRIORITY OF BENEFICIAL USE. The norm for allocation is “First in Time, First in Right”
Thus, a person can acquire the right to divert and use water from a watercourse merely by being the first to do so. Any productive or beneficial use of the water, including use for agriculture, is sufficient to create the appropriation right
Rule for GROUNDWATER
Groundwater, also known as “percolating water” - ie water beneath the surface of the earth that is not confined to a known channel
The Surface Owner is entitled to make REASONABLE USE OF GROUND WATER
However, the use must NOT be WASTEFUL
Rule for Surface Water
Common Enemy Rule: - surface water is a nemesis and is therefore considered a common enemy
A landowner may change drainage or make any other changes/improvements on his land to combat the flow of surface water (e.g. change pitch or slope of the land) BUT many courts have modified the common enemy rule to prohibit UNNECESSARY harm to others’ land
Possessor’s Rights
A possessor of land has a right to be free from TRESPASSERS and NUISANCE
Trespass
Invasion of land by physical object
To remove a trespasser, bring an ejectment action
Private Nuisance
Substantial and Unreasonable interference with another’s use and enjoyment of land
NOTE: unlike trespass, nuisance does NOT require tangible physical invasion. Thus ODORS, and NOISE could give rise to a nuisance, but not a trespass
Nuisance and hypersensitive plaintiffs
Nuisance is judged under an objective reasonable person standard. Hypersensitive uses of land and hypersensitive plaintiffs will not win a nuisance claim.
EMINENT DOMAIN
the Government’s 5th amendment power to take private property for PUBLIC USE in exchange for JUST COMPENSATION
Types of “takings” under the 5th amendment
(1) an Act of govt condemnation - e.g. govt condemns your land to make way for a public highway
(2) Implicit or regulatory taking - a govt regulation that results in depriving your land of all economic value, it is equivalent to a physical appropriation of the land and amounts to the taking
Remedies for a taking under 5th amendment
(1) compensate the owner with fair value in hands of the owner
(2) terminate the regulation and pay the owner for damages occurred while it was in effect
ZONING
Pursuant to its police powers, government may exact statutes to reasonably control land use
The Variance
principal means to achieve flexibility in zoning
Proponent must show
(1) UNDUE HARDSHIP
(2) that the variance won’t DECREASE neighboring property values
Variance is granted by administrative action, typically a zoning board
