Rights Incidental to Ownership of Land (Natural Rights)

Question 1

Lateral Support

Answer 1

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

Question 2

Support of Land in Natural State

Answer 2

A landowner is strictly liable if their excavation causes adjacent land to subside (meaning, slip or cave in).

Question 3

Support of Land with Buildings

Answer 3

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.

However, strict liability will apply to the Defendant excavator’s actions if the P shows that because of the defendant’s actions, the P’s improved land would have collapsed even in its natural state.

Question 4

Watercourses (Streams, Rivers, and Lakes)

Answer 4

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 5

Riparian Doctrine

Answer 5

Water belongs to those who own the land bordering the watercourse.

Riparian rights attach to all continuous 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 6

Natural Flow Theory

Answer 6

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

Question 7

Reasonable Use Theory

Answer 7

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.

Six 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 8

Prior Appropriation Doctrine

Answer 8

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 9

Right to Exclude - Remedies of Possessor

Answer 9

Teh possessor of real property has the right to exclude others. Their remedies for invasions include actions for:

Trespass
Private Nuisance
Continuing Trespass
Ejectment or unlawful detainer