Week 5 Flashcards by Elena L Swirczek

No channel + surface =

surface water

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Types of water= channel + surface =

watercourse

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Channel + underground =

underground river

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No channel + underground =

percolating waters

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Basis of water rights is ___

state law

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Water is similar to oil/gas in that it is ___ but unlike those it is __

fugacious, subject to hydrological cycle

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Riparian rights apply when ___

appurtenant to land, land use and surface stream use same package

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English natural flow theory

upstream owner can’t divert water in any way that hurts the downstream owner (they get a veto)

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Problems with English flow theory

(1) hard to measure amount of water
(2) bilateral monopoly
(3) hard to enforce

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____ is the goal of English natural flow

negotiation

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American reasonable use theory

consider purpose of use, sustainability, econ/social values, harm, ability to bear loss etc

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American law usually finds not reasonable to ____ since it hurts the ___

divert surface water outside of watershed, downstream owner since water not replenished

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Evans says that _____ but if ____ then jury decides

natural use trumps artificial, two artificial use

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What is a beneficial use of water

productive/econ uses

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In Illinois natural uses include ___

drinking/household needs/cattle watering

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Statutes favoring ___ sometimes overrode default of Evans

mining/ag/mills

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Irrigation is likely a natural use in a ____ but in Evans it is ___

arid area, artificial

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Appropriation theory of water rights

1st gets priority whether upstream or downstream

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Appropriation theory influenced by ___

mining camp customs

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Evans facts

East coast steam mills, abnormal water shortage

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Evans implies if only enough water for ___

one to survive upstream gets it all

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Evans says the water diversion upstream is ___

little injury to those below + valuable benefit to himsef

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Coffin facts

water diverted outside watershed, both want for irrigation

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Coffin says that in Colorado the ____ as long as ___

first appropriator can take all of the water in the stream, use is beneficial

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In Coffin, the water diversion right is not ____ and lasts as long as ___

pure property right, using the resource

In Coffin, to divert water you must ____ but don't need to ____

have land, be riparian owner or have land in the same watershed

Conditions in CO that support first appropriator

(1) arid soil + mining require water from a distance (2) land near water not necessarily worth using it on (3) scale of use too large to split amongst all riparians

Like _____, it is _____ beneficial use

reasonable use, hard to define

Tulare says that ____ is not beneficial

flooding off gophers

Now appropriation system comes with ____ that is less tolerant of ___ and helps with __

elaborate regulatory scheme, diversion outside watershed, measurement issues

More recently, western states have been amending their water rights to provide for ___

rights for instream users (rafting)

What is common enemy doctrine

diffuse surface water undesirable so each LO absolute right to use self-help to repel inflows of surface water even if causes damaging flooding to other LOs

More recently, common enemy doctrine has been modified to include ___

reasonableness

Higday says the overlying owner's right to use the groundwater is ___

incidental to the beneficial enjoyment of the land from which it was taken

Higday holding

farmer injunction denied despite unreasonable use

Higday says that the city is required to ___

compensate farmers if lower water table

Higday implies that the city should ___

use eminent domain

The city in Higday is using the Acton rule meaning ___

slant drilling rule so extract as much as they can

Problems with using Acton rule in Higday

(1) water adds value to use of land in way oil/gas doesn't (2) diverting outside watershed

Generally can use Acton rule for groundwater but ____

reasonable use/watershed as limits

How does Higday define unreasonable

waste/maliciousness/selling (especially outside watershed)

Higday rejects a ____ system because __

correlative rights (proportionate withdrawal) like in CA, too complicated (which surface owners) + egalitarian rigidity

What is the valuation issue with water

not conventional property right

Public trust not used a lot with water but it was for ___

Mono Lake in CA, and for groundwater in Hawaii to protect native practices

Criminal trespass to real property has _____ criminal penalties

minimal

Criminal larceny initial emphasis on ____ to a more general emphasis ___

preventing violence, owner's interest in security of property

For civil trespass usually can't get ___ but ____

injunction, exceptions (repeated trespass)

Ejectment means

action to remove another in wrongful possession

FED statutes are ____

forcible entry and detainer

FED Statues are mostly ___

used in L/T relationship, often only lawful means to evict tenant

FED is like ejectment but ___

more streamlined procedure

Nuisance only applies ___

to real property

Nuisance must be ___ and __

substantial, unreasonable

Conversion is when ___

sue to get damages (forced sale)

Replevin is __

action to get something back

Arson and burglary apply when ___

threat to persons

Trespass to chattels __

protects personal property from damage

Hamdi says that harm ___

must be proven if not only self-help available

Unlike trespass to land, trespass to chattels ___

requires injury

Hamdi says ____ don't qualify as injury

intrusion by electrons, disruption to business, expense of trying to bypass emails

Hamdi says injury must be ___

physical to the chattels

Why no nuisance to chattels

nuisance is a spatial tort tied to lost value of land

Hamdi dissent and majority both agree that ___

Intel had a right to try to prevent Hamidi

Hamidi implicates a similar to INS, whether ___

SoP Q about creating new rights in intangible property

Hamidi decision was driven by ____ of the time which was __

internet ideology, it was a coop space that didn't need regulation

Internet theology at time of Hamidi

(1) more the merrier (2) coop culture not requiring legal intervention (3) tech optimism for solving problems

Hamidi dissent argues that harm should be __

characterized differently and points out self help ineffective

Other early internet law commentators favored ___ analogy for the internet

real estate

School of Visual Arts case focuses on ____ over the ___

physical impediment (#bytes slowing down the system), character of the messages

Nominal trespass damages may be about _____ so not the same issues with chattels

title in real property

what is offensive self help

recover possession that has been lost to another person

Offensive self help example

run after pickpocket and threaten to punch him

Offensive self help is viewed as more -__

problematic than defensive self help

Offensive self help was allowed in ____ but not ___

Williams, Berg

Katco says _____ not allowed

lethal defensive self help

Examples of defensive self help

Intel spam filters, locks, video cameras

Berg says landlords must ___

use judicial process to remove tenant in possession (never self help)

Berg is about __

Landlord that changed locks

Berg says Wiley's retaking was ___

not peaceable

Court says Berg may be different if ___

rent payments had stopped (evidence of abandonment)

Berg is focused on ___

preventing violence

What if Wiley threw all of Berg's stuff on the street?

likely still problematic because most forceful residential evictions done by the sheriff

If the tenant in Berg had ____, the L could re-enter without the judicial process

in fact abandoned the property

Maybe _ part of Berg decision

speedy FED process

Unclear if Berg would be same result if ___

mobile home

Williams is about

repossessing car in the middle of the night

Williams says that ___ is lawful under the UCC

peaceful self help

Williams says that conversion is only satisfied when ___

force/threats of force or risk of involving violence

Williams says it is important to allow holders of security interest ___ because ___

easy method for gaining possession of collateral on default, prevents breaches of the peace and expands access to credit

Why no due process problem in Williams

no court involvement under the UCC

Why Williams different outcome than Berg

not real property, often key to livelihood

Williams seems to favor owners that are ____

physically threatening (absurd result)

If people in Williams recovering under replevin statute then ___

might be due process issues because state action AND likely more protection to owners

Week 5 Flashcards

(94 cards)