Rights Incidental to Ownership of Land (Natural Rights)

Question 1

An owner of real property has the exclusive right to use and possess: (3 things)

Answer 1

(1) the surface
(2) the airspace
(3) the soil of the property

Question 2

What is the right to lateral support of land?

Answer 2

Ownership of land includes the right to have the land supported in is natural state (i.e., unadorned, undeveloped) by adjoining land

Question 3

A landowner is _______ if their excavation causes adjacent land to subsite (i.e., slip or cave in).

Answer 3

strictly liable

Question 4

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 _______.

What is the exception?

Answer 4

negligent

Strict liability will apply if the plaintiff shows that, because of the defendant’s actions, the plaintiff’s improved land would have collapsed even in its natural state.

In other words, for strict liability to apply, the plaintiff must show that the improvements on their land (e.g., the structures) did not contribute to their land’s collapse.

Question 5

What is the right to subjacent support of land?

Answer 5

An underground occupant of land (e.g., a mining company) must support the surface and buildings existing on the date the subjacent estate was created.

Question 6

What is required to establish liability for a subjacent land owner for subsequently erected surface buildings?

Answer 6

negligence

Question 7

What are the two major systems for determining allocation of water in watercourses (e.g., streams, rivers, and lakes)?

Answer 7

(1) Riparian doctrine

(2) Prior appropriation doctrine

Question 8

Explain the riparian doctrine for watercourses.

Answer 8

Under the riparian doctrine, the water belongs to those who own the land bordering the watercourse. Riparian rights attach to all contiguous tracts held by the same owner as long as one of the tracts abuts the water. Riparian owners can use water only in connection with the riparian parcel.

Question 9

What is the natural flow theory of the riparian doctrine?

Answer 9

A riparian owner’s use is enjoinable if it results in substantial or material diminution of the water’s quantity, quality, or velocity.

Question 10

What is the reasonable use theory of the riparian doctrine?

Answer 10

By far the most common.

All riparians share the right of “reasonable use” of the water (i.e., one owner’s use is not enjoinable unless it substantially interferes with other riparians’ use).

Question 11

What is the balancing test for the reasonable use theory of the riparian doctrine? (6 factors)

Answer 11

(1) alteration of flow
(2) purpose of use
(3) pollution
(4) extent of use
(5) destination of water taken
(6) miscellaneous conduct that may give rise to litigation

Question 12

Under either the natural flow theory or reasonable use theory of the riparian doctrine, which kinds of uses are given priority?

Answer 12

Natural uses (e.g., human uses like consumption or gardening) prevail over artificial uses (e.g., irrigation and manufacturing).

Question 13

Explain the prior appropriation doctrine for watercourses.

Answer 13

The water initially belongs to the state, but the right to divert is and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a riparian owner.

Appropriative rights are determined by priority of beneficial use. The norm 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 water, including use for agriculture, is sufficient to create the appropriation right.

An appropriative right can be lost by abandonment.

Question 14

Which 4 doctrines determine rights in groundwater?

Answer 14

(1) Absolute ownership: the owner of overlying land can take all the water they wish, for any purpose, including export
(2) Reasonable use: (most common in eastern states) like absolute ownership, but exporting is allowed only if it does not harm other owners who have rights in the same aquifer
(3) Correlative rights: owners of overlying land own the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use
(4) Appropriate rights: (most common in western states) priority of use (not ownership of overlying land) is determinative

Question 15

What is the Restatement approach to groundwater?

Answer 15

A surface owner may pump groundwater unless it:
(1) unreasonably harms neighboring landowners,

(2) exceeds the pumper’s reasonable share, or
(3) directly and substantially affects surface waters and unreasonably harms surface water users

Question 16

What are the three major systems for determining rights to surface waters (e.g., water coming from rain, springs, or melting snow)?

Answer 16

(1) Natural flow theory: owners cannot unreasonably alter natural drainage patterns
(2) Common enemy theory: owner can take any protective measures to get rid of the water or combat its flow (e.g., dikes or drainage changes), but unnecessary damage to others’ lands is prohibited
(3) Reasonable use theory: balances the utility of the use against the gravity of the harm

Question 17

What are a landowners rights in airspace?

Answer 17

The right to airspace above a parcel is not exclusive, but the owner is entitled to freedom from excessive noise.