water rights

Question 1

Drainage

Answer 1

Concerned with “diffuse surface
waters” — water in the form of
precipitation

Question 2

watercourse

Answer 2

Concerned with “diffuse surface
waters” — water in the form of
precipitation

Question 3

Aquifer

Answer 3

Concerned with water found

beneath the ground

Question 4

Littoral

Answer 4

Concerned with water found in

the ocean

Question 5

Armstrong v. Francis Corp.

Answer 5

“[E]ach possessor is legally privileged to make a
reasonable use of his land, even though the flow of
surface waters is altered thereby and causes some
harm to others, but incurs liability when his harmful
interference with the flow of surface waters is
unreasonable” p. 702, ¶ 1
‘ Common enemy
- Owner can do whatever is necessary to get rid of
surface waters without liability
‘ Civil law rule
- Owner liable for all damage caused by changing
drainage patterns

Question 6

law has to balance

Answer 6

(streams rivers lakes)
rts of earlier users
actual use of water being made
rts of upstream users

Question 7

Eastern approach

Answer 7

Riparian System:
It presumes an abundance of water
-Regulates based on reasonable use

Question 8

Western approach

Answer 8

priority of
appropriation”
- It presumes a shortage of water
- Regulates based on time when use began

Question 9

natural flow

Answer 9

Each riparian owner is entitled
to the water that would be
provided by the natural flow of
the watercourse (work in hindsight)
difficult to predict if water use is allowed

Question 10

reasonable use

Answer 10

Each riparian owner has the
right to be free from other’s
unreasonable uses of the
water which would cause harm
to his own reasonable use of
the water

Question 11

what land is riparian

Answer 11

contiguous to watercourse & w/in the watershed

Question 12

watershed

Answer 12

area of land that

drains into a particular body of water

Question 13

reasonable use test (riparian)

Answer 13

diversion of water to a different estate or watershed is improper unless there is no present or
future injury to a downstream riparian
holder

Question 14

natural watercourse test (riparian)

Answer 14

natural watercourse test,”

Question 15

natural flow theory

Answer 15

of riparian rights-minority

Question 16

aquifers & groundwater

Answer 16

common law-use it for whatever who cares
restatement-Can extract whatever water as is
desired for a reasonable and
beneficial use unless:
- The pumping unreasonably lowers the water table or reduces artesian pressure,
- The pumping exceeds the proprietor’s reasonable share of the aquifer, or
- The pumping has a direct and unreasonable effect on a lake or stream

Question 17

groundwater reas use test

Answer 17

- not a balancing test
'*As long as the title holder is using the water
for something reasonable — the water is
not being pumped for no reason — it does
not matter if there are other more
reasonable uses for the water

Question 18

air rights

Answer 18

As a general rule, the
titleholder is free to use
the airspace however
the titleholder sees fit
' If anyone else has the
right to use the
airspace, they must
avoid the titleholder’s
uses

Question 19

US v. Causby

Answer 19

“The landowner owns at least as much of
the space above the ground as he can
occupy or use in connection with the land”
p. 734, ¶ 2

Question 20

minimum altitude of fligth airplane must fly above

Answer 20

1000’ above ground or any fixture on it

The air space above the minimum safe
altitude of flight as defined by the F.A.A.
can be used by all aviation without it
constituting a trespass to land

Question 21

ancient lights doctrine

Answer 21

com. law-If the landowner received and used sunlight
across another’s land for long enough, the
landowner was entitled to continue to get the
sunlight (most reject US)

Question 22

SPITE FENCE

Answer 22

historically only sunlight rights US juris recognized

today- apply nuisance laws or legistlative solutions

Question 23

three rules of drainage

Answer 23

-Reasonable use” (majority) allows a land owner
to reasonably change drainage patterns as long
as no unreasonable harm occurs
- “Common enemy” (traditional) allows a land
owner to change drainage patterns regardless of
the consequences
- “Civil law” imposes strict liability on the owner for
changing drainage patterns
‘ Remember that wetlands regulations
change the common law in many states

Question 24

natural flow (riparian)

Answer 24

Each riparian owner is
entitled to receive the
amount of water that
the stream would
normally provide

Question 25

reasonable use (riparian)

Answer 25

Each riparian owner is
entitled to be free from
any other riparian
holder’s unreasonable
use of the water

Question 26

riparian owner

Answer 26

someone with an estate
that is contiguous to the watercourse and
within its watershed