Rights Incidental to Ownership of Land Flashcards
Rights Incidental to Ownership of Land - Overall Concept
- owner of real property has exclusive right to use + possess the surface, airspace, and soil of the property
Includes:
- right to lateral and subjacent support of land
- water rights (see cards though, this is tricky)
- rights in airspace
- Right to Exclude
Rights in Airspace
- not exclusive, BUT owner is entitled to freedom from excessive noise
- think also in Property class we discussed how at some point it comes close enough to be a trespass
Right to Exclude - Remedies of Possessor
Include:
- trespass
- private nuisance (land invaded by intangibles, ex odor + noise)
- continuing trespass
- ejectment or unlawful detainer to remove trespasser or tenant
Right to Lateral Support of Land
- ownership of land includes right to have the land supported in its “natural state” by adjoining land
- strictly liable if excavation causes adjacent land to slip or cave in (subside)
If there are buildings on the land + improved land caves in, adjacent landowner is:
- liable if negligent
- strictly liable if plaintiff establishes that the land would’ve collapsed in its natural state (the improvements on the land didn’t contribute to the collapse)
Right to Subjacent Support
- an underground occupant of land (ex: mining company) must support the surface + buildings existing on the date the subjacent estate was created
- liability for subsequently erected buildings requires negligence
Water Rights - Types of Rules
Different rules apply to:
- watercourses
- groundwater
- surface waters
Water Rights - Water Courses
- two major systems for determining allocation of water in watercourses: riparian doctrine and prior appropriation doctrine
- boundary line can also be impacted by accretion or avulsion
Riparian Doctrine
- applies to watercourses
- water belongs to those who own the land bordering the watercourse
- rights attached to all contiguous tracts held by the same owner as long as one of the tracts abuts the water
- holders of rights can use water only in connection with the parcel
Riparian Doctrine - Natural Flow Theory
- vs. reasonable use theory
- riparian owner’s use is enjoinable if it results in substantial or material diminution of the water’s quantity, quality, or velocity
Riparian Doctrine - Reasonable Use Theory
- vs. natural flow theory
- all riparians share the right of “reasonable use” of the water
->one owner’s use not enjoinable unless substantially interferes w/ use of other riparian owners - to eval reasonableness, courts balance utility of owner’s use against gravity of the harm
-> consider six factors
Riparian Doctrine + Reasonable Use Theory - Factors Considered for Reasonableness
- alteration of flow
- purpose of use
- pollution
- extent of use
- destination of water taken
- miscellaneous conduct that may give rise to litigation
Riparian Doctrine - Natural Uses vs. Artificial Ones
- under either of the two theories, natural uses (consumption, gardening) prevail over artificial uses (irrigation, manufacturing)
Prior Appropriation Doctrine
- another doctrine for watercourse rights
- water initially belongs to the state, but right to divert it + use it can be acquired by indiv through actual use, regardless of whether or not they happen to be a riparian owner
- rights determined by the priority of the beneficial use (first in time, first in right)
- any productive or beneficial use of the water, including for agriculture, is sufficient to create appropriation right
- appropriative right can be lost by abandonment
Groundwater
- water beneath the surface of the earth that isn’t confined to a known channel
Four possible doctrines:
- absolute ownership doctrine
- reasonable use doctrine
- correlative rights doctrine
- appropriative rights doctrine
- also restatement approach
Groundwater - Absolute Ownership Doctrine
- only a few states follow
- owner of land can take all the underlying water they want, for any purpose, including export
Groundwater - Reasonable Use Doctrine
- many eastern states follow
- like absolute ownership, but exporting only allowed if doesn’t harm other owners who have rights in the same aquifer
Groundwater - Correlative Rights Doctrine
- owners of overlying land own underground water basin as joint tenants
-> each allowed a reasonable amount for own use - some states apply
Groundwater - Appropriative Rights Doctrine
- followed in many western states
- priority of use (not ownership of land) is determinative
Groundwater - Restatement Approach
- few states follow
- surface owner may pump groundwater unless:
1) unreasonably harms neighboring landowners
2) exceeds pumper’s reasonable share
3) directly and substantially affects surface waters + unreasonable harms surface water users
Surface Waters
- water w/o a channel that passes over land, such as water coming from rain, springs, or melting snow, which has not yet reached a natural watercourse or basin
- landowner can use surface water within their boundaries for any purpose they desire
-q’s on this topic usually focus on liability for changing natural flow by dikes, drains, etc.
Surface Water - Theories of Liability
- Natural Flow
- Common Enemy
- Reasonable Use (NC FOLLOWS THIS)
Surface Water - Natural Flow Theory
- owners can’t alter natural drainage patterns
- softened in most states though to allow reasonable changes
Surface Water - Common Enemy Theory
- followed by many states
- owner can take any protective measures to get rid of the water or combat its flow (ex: dikes or drainage changes)
- rule has been modified by many courts to prohibit unnecessary damage to others’ lands
Surface Water Theory - Reasonable Use Theory
- NC APPLIES
- involves balancing utility of use against gravity of harm
