RIGHTS INCIDENTAL TO OWNERSHIP OF LAND (NATURAL RIGHTS)

Question 1

IN GENERAL

Answer 1

• Owner of real property has exclusive right to use & possess surface, airspace, & soil of property.

Question 2

RIGHTS TO LATERAL AND SUBJACENT
SUPPORT OF LAND: Lateral Support

Answer 2

• Ownership of land includes right to have land supported in its natural state by adjoining land.

Support of Land in Natural State
- Landowner is strictly liable if their excavation causes adjacent land to subside (slip/cave in).

Support of Land with Buildings
- If land is improved by buildings & adjacent landowner’s excavation causes that improved land to cave in, excavator will be liable only if negligent.
- However, strict liability will apply to A excavator’s actions if P shows that, b/c of D’s actions, P’s improved land would have collapsed even in its natural state.
- In other words, for strict liability to apply, P must show that improvements on their land (ex.the shrubs, the fountain, the structures) did not contribute to their land’s collapse.

Question 3

RIGHTS TO LATERAL AND SUBJACENT
SUPPORT OF LAND: Subjacent Support

Answer 3

• An underground occupant of land (ex. a mining company) must support the surface and buildings existing on the date the subjacent estate was created.
• Liability for subsequently erected buildings requires negligence.

Question 4

WATER RIGHTS

Answer 4

• Different rules apply to watercourses, groundwater, and surface waters.

Question 5

Watercourses (Streams, Rivers, and Lakes)

Answer 5

• There are two major systems for determining allocation of water in watercourses: the riparian doctrine and the prior appropriation doctrine.
• A boundary line also can be affected by accretion or avulsion

Question 6

Riparian Doctrine

Answer 6

• Under this 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 7

Riparian Doctrine: Natural Flow Theory

Answer 7

• Under this theory, a riparian owner’s use is enjoinable if it results in substantial/material diminution of the water’s quantity, quality, or velocity.

Question 8

Riparian Doctrine: Reasonable Use Theory

Answer 8

• Under this theory, which is the most common, all riparians share the right of “reasonable use” of the water (that is, one owner’s use is not enjoinable unless it substantially interferes with the use of other riparian owners).
• In determining “reasonable” use, courts balance the utility of the owner’s use against the gravity of the harm.
• 6 factors are helpful in making this determination: alteration of flow, purpose of use, pollution, extent of use, destination of water taken, and miscellaneous conduct that may give rise to litigation.

Question 9

Riparian Doctrine: Natural vs. Artificial Use

Answer 9

Under either theory, natural uses (human uses, for ex., consumption, gardening) prevail over artificial uses (ex. irrigation, manufacturing)

Question 10

Prior Appropriation Doctrine

Answer 10

• Under this doctrine, the water initially belongs to the state, but the right to divert it 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 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.
• Note that an appropriative right can be lost by abandonment.

Question 11

Groundwater (Percolating Water)

Answer 11

• Groundwater is water beneath the surface of the earth that isn’t confined to a known channel.
• Four doctrines determine rights in groundwater:

a. Absolute Ownership Doctrine
This doctrine is followed by only a few states. The owner of overlying land can take all the water they wish, for any purpose, including export.

b. Reasonable Use Doctrine
Many eastern states follow this doctrine. It is like absolute ownership, but exporting is allowed only if it does not harm other owners who have rights in the same aquifer.

c. Correlative Rights Doctrine
In some states, owners of overlying land own the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use.

d. Appropriative Rights Doctrine
This doctrine is followed in many western states. Priority of use (not ownership of overlying land) is determinative.

e. Restatement Approach
- A few states follow the Restatement approach, under which 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 12

Surface Waters

Answer 12

• Surface water is water without 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.
• A landowner can use surface water within their boundaries for any purpose they desire.
• Questions on surface water usually concern liability for changing natural flow by dikes, drains, and so on.
• Liability depends on which theory the state follows.

Question 13

Surface Waters Cont

Answer 13

Natural Flow Theory
- Under this theory, followed by many states, owners cannot alter natural drainage patterns. This rule has been “softened” in most states to allow “reasonable changes.”

Common Enemy Theory
- Under this theory, followed by many states, an owner can take any protective measures to get rid of the water or combat its flow (ex. dikes or drainage changes).
- The rule has been modified by many courts to prohibit unnecessary damage to others’ lands.

Reasonable Use Theory
- There is a growing trend to apply this theory, which involves balancing the utility of the use against the gravity of the harm.

Question 14

Tip

Answer 14

Remember that the above theories apply to redirecting surface water. A landowner can capture (ex. by a dam or in barrels) as much
surface water as they wish. Surface water can be diverted to any purpose on or off the land. Owners below have no cause of action unless the diversion was malicious.

Question 15

RIGHTS IN AIRSPACE

Answer 15

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

Question 16

RIGHT TO EXCLUDE—REMEDIES OF
POSSESSOR

Answer 16

• The possessor of real property has the right to exclude others.
  Their remedies for invasions include actions for:
  (1) Trespass (land invaded by tangible physical object);
  (2) Private nuisance (land invaded by intangibles such as odors/noise);
  (3) Continuing trespass (land repeatedly invaded by trespasser); and
  (4) Ejectment or unlawful detainer to remove a trespasser/tenant.
• This action can be joined with a demand for money damages.