Rights to lateral and subjacent support of land Flashcards
In general
An owner of real property has the exclusive right to use and possess the surface, airspace, and the soil of the property.
Rights to lateral support - generally
Ownership of land includes the right to have the land supported in its natural state by adjoining land. Natural state means not encumbered or even landscaped pretty much wholly untouched. 
Rights to lateral support - support of land in natural state
A landowner is strictly liable if their excavation causes adjacent nature land to subside, meaning slip or cave in
Rights to lateral support - support of land with buildings
If land is improved by buildings and an adjacent landowners excavation causes that improved land to cave in, the excavator will be liable only if negligent. However, strict liability will apply to the defendant, excavators actions, if the plaintiff shows that, because of the defendants actions, the plaintiff improve land would have collapse even in its natural state. Basically, the plaintiff must show that the improvements on the land did not contribute to their land’s collapse.
Rights to subjacent support
An underground occupant of land, like 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.
Water rights - watercourses
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.
Water rights - watercourses - riparian doctrine
Under the doctrine, the water belongs to those who own the land bordering the water course. Riparian rights attach to all contiguous tracks held by the same owner as long as one of the tracks above the water. Riparian an owners can only use the water and connection with the riparian parcel. 
Water rights - watercourses - riparian doctrine - natural flow theory
Under this theory, the riparian owners use is enjoinable if it results in substantial or material demolition of the waters quantity quality or velocity. 
Water rights - watercourses - riparian doctrine - reasonable use theory
Most common theory used by states. All riparians share the right of reasonable use of the water. That is, one owners uses not enjoinable unless it substantially interferes with the use of the other owners. And determining reasonable use, courts balance, the utility of the owners 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 the litigation. 
Water rights - watercourses - riparian doctrine - natural vs artificial use
Under either theory, natural flow or reasonable use, natural uses, which are human uses for example consumption or gardening, prevail over, artificial uses such as irrigation and manufacturing.
Water rights - watercourses - prior appropriation doctrine
Under the 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 and right. Thus, a person can acquire the right to divert and use water from a watercourse merely because they were the first to do so. Any productive or beneficial use of the water, including for agricultural purposes, is sufficient to create the appropriation right. Note that an appropriative right can be lost by abandonment. 
Water rights - groundwater
Groundwater is water beneath the surface of the earth that isn’t confined to a known channel. There are four different doctrines.
Water rights - groundwater - absolute ownership doctrine
This doctor is followed by only a few states. The owner of overlying land can take all the water they wish, for any purpose, including export.
Water rights - groundwater - 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.
Water rights - groundwater - correlative rights doctrine
In some states, owners of overlying land on the underground water basin as joint tenants, and each is allowed a reasonable amount for his own use.
Water rights - groundwater - appropriative rights doctrine
This doctrine has followed by many western states. Priority of use, not on a ship of overlying land, is determinative.
Water rights - groundwater - restatement approach
A few states follow the restatement approach, under which a surface owner may pump underground water, unless it unreasonably harms neighboring landowners, exceeds the pumper’s reasonable share, or directly and substantially affects surface water and unreasonably harm surface water users.
Water rights - Surface waters
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 water course or basin. A landowner can use surface water within their boundaries for any purpose, they desire. Questions of surface water usually concern my ability for changing natural flow by drains and so on. A landowner can capture as much surface water as they wish, but when changing the direction of the surface water, liability depends on which theory the state follows.
Water rights - Surface waters - natural flow theory
Under this theory, followed by many states, owners cannot altered natural drainage patterns. This rule has been softened in most states to allow reasonable changes.
Water rights - Surface waters - common enemy theory
Followed by many states, and owner can take any protective measures to get rid of water or combat its flow, for example by dams or drainage changes. The rule has been modified by many courts to prohibit unnecessary damage to others land.
Water rights - Surface waters -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.
Rights in airspace
The right to airspace above a parcel is not exclusive, but the owner is entitled to freedom from excessive noise
Right to exclude - remedies of possessor
The possessor of real property has the right to exclude others. Their remedies for invasions include actions for:
Trespassers
Private nuisances
Continuing trespass
Ejectment or unlawful detainer to remove a trespasser or tenant. This action can be joined with a man for money damages. 
