Rights Incidental to Land Ownership Flashcards
What are the general rights of an owner of real property?
to use and possess the surface, airspace and soil of the property
What is the right to lateral support?
The owner has the right to have the land supported in its natural state by adjacent land. Strict liability where excavation causes adjacent land to subside. If the adjacent land had buildings damages by subsidence, strict liability for damage from excavation only where shown that the land would have collapsed in its natural state, otherwise just liable for negligence
What is the right to subjacent support?
A subterranean occupant (miner, e.g.) must support the surface and buildings existing on the date the subjacent estate was created. liability for subsequently erected buildings requires negligence
What are the two major systems for allocating water rights in watercourses?
Riparian doctrine and prior appropriation doctrine
What is the riparian doctrine?
The water in a watercourse belongs to those who own the land bordering the watercourse. Attach to all contiguous tracts by the same owner as long as one tract abuts the parcel. Riparian owners can only use water in connection with the parcel. Riparian jurisdictions apply either the natural flow theory or the reasonable use theory to assessing whether an owner’s use is legitimate (but most use reasonable use theory)
What is the natural flow theory (watercourse)?
In riparian jurisdictions applying this doctrine, a riparian owner’s use can be enjoined if it results in substantial or material diminution of the water’s quantity, quality or velocity
What is the reasonable use theory (watercourse)?
In riparian jurisdictions applying this doctrine, all riparian owners share the right of reasonable use of the watercourse. One owner’s use will not be enjoinable unless it substantially interferes with the use of another. Reasonable use is determined by balancing the utility of the owner’s use against the gravity of the harm and six factors weigh on this analysis –> (1) alteration of flow (2) purpose of use (3) pollution (4) extent of use (5) destination of water taken and (6) miscellaneous conduct that may give rise to litigation
What is the effect of the type of use under either the natural flow or reasonable use theory?
Natural uses like consumption or gardening (personal, human uses) take precedence over artificial ones (irrigation or manufacturing)
What is the prior appropriation doctrine?
Individuals acquire rights to a watercourse by actual use. Appropriative rights are determined by priority of beneficial use. If flow decreases, priority accorded to first to appropriate. Can be lost by abandonment
What doctrines determine rights in groundwater/percolating water?
Absolute ownership doctrine Reasonable use doctrine Correlative rights doctrine Appropriative rights doctrine Restatement approach
What is the absolute ownership doctrine?
Minority
Owner of overlying land can take all the water they want to
What is the reasonable use doctrine (groundwater)?
Most eastern states
Like absolute ownership the owner of overlying land is free to take water, but can only export it if it does not harm the owners who have rights in the same aquifer
What is the correlative rights doctrine?
Owners of overlying land own the underground water basin as joint tenants and each is allowed a reasonable amount for use
What is the appropriative rights doctrine?
Most western states
Priority of use not ownership of overlying land is determinative
What is the restatement approach to groundwater rights?
Surface owner may pump groundwater unless (1) it unreasonably harms neighboring landowners, (2) it exceeds their reasonable share, or (3) it directly/substantially affects surface waters and unreasonably harms surface water users
What are the theories of liability states apply to redirection of surface waters?
Natural flow theory
Common enemy theory
Reasonable use theory
What is the natural flow theory of surface water rights?
Many states follow
Owners cannot alter natural drainage patterns though many states now allow for reasonable changes
What is the common enemy theory?
Many states follow
Owners can take protective measures to get rid of water but usually must take steps to prevent unnecessary damage to others’ lands
What is the reasonable use theory of surface water rights?
Growing trend
Balance the utility of use against gravity of harm
What can landowner do to capture surface water?
An owner can capture as much surface water as they want on their own land and divert to any purpose on or off. Liability usually only arises where owners seek to change natural flows
What are an owner’s airspace rights?
Nonexclusive, but entitled to freedom from excessive noise
What are a property owner’s remedies for invasions of others?
(1) Action for trespass
(2) Action for nuisance
(3) Action for continuing trespass
(4) action for ejectment or unlawful detainer
